Court Strikes Down Wyoming Ag-Gag Law

A Sweeping Victory for Free Speech & A Stinging Defeat for Wyoming’s Ag-Gag Law

Paul Bland for Public Justice


Tuesday October 30, 2018 · 8:29 AM PDT

At the behest of the American Legislative Exchange Council (ALEC) and U.S. Chamber of Commerce — two powerful front groups for industrial agriculture companies and their factory farms — state legislatures across the country have been passing laws to suppress citizen reporting on workplace harassment, pollution, and animal abuse. But late yesterday, their well-funded attempts to buy state lawmakers and push through these draconian laws came to a screeching halt: After years of litigation by my organization Public Justice, a District Court in Wyoming struck down that state’s statutes, concluding Wyoming had “no plausible reasons for the specific curtailment of speech … beyond a clear attempt to punish individuals for engaging in protected speech that at least some find unpleasant.”

That’s a sweeping victory for the First Amendment and about as close as a court will ever come to calling bullshit.

Wyoming’s statutes — known as “data trespass laws” — are a version of “Ag-Gag” laws, so called because they were designed by lobbyists for industrial animal agriculture companies to prevent investigations of factory farms and slaughterhouses. These are the giant, multi-national companies that have replaced the family farm with massive, profit focused production facilities that create life threatening conditions for the workers and skin animals alive. Because industrial animal agriculture knows consumers won’t stand for that, they worked with ALEC and the Chamber to try to prevent these facts from seeing the light of day.

Big Ag quickly realized, however, that they were getting little return on their investment: Public Justice and its allies were on a winning streak, striking down these laws across the country.

So Wyoming tried another tact: Rather than directly suppressing investigations, lawmakers decided to pass special “trespass” laws that increased jail time and levied special fines even if you accidentally touched private property if (and only if) you were on your way to investigate pollution on public lands. Wyoming is a state known for its lack of fences or even sign posts. Thousands of acres of public land can have a tiny, unmarked private square within it, thanks to, for example, an oil lease that is recorded only in the bowels of some government office building. Wyoming hoped to turn the government and private landowners’ own failure to identify public and private land against advocates, making them fearful of taking any step — or risk prosecution and jail time.

And that is exactly what Wyoming accomplished. Our client, Western Watersheds Project, used to take water samples to make sure public lands were protected from over-grazing and pollution. After the laws were passed, they could only sample places they could reach exclusively by publically marked roads, as walking through parks could expose them to liability. Similarly, another Plaintiff, the Natural Resources Defense Council (NRDC) had planned to set up air monitoring stations on public property to determine how energy production is altering the air we breathe, but it had to call that work off because going to and from the stations was covered by the laws and NRDC couldn’t be confident what property it would touch along the way. The laws even interfered with the work of journalists, who we also represented through the National Press Photographers Association. A photojournalist on the way to cover breaking news had to turn off his camera because his desired pictures of people clearing public land were prohibited by the law and he didn’t have time to trace his steps in order to determine exactly how he reached the site.

Thankfully, yesterday, the district court said no more, explaining that restricting environmental data collection and photography is an affront to the First Amendment. Indeed, the Court underscores that Wyoming’s laws are some of the most noxious restrictions on speech possible, noting that the state clearly targeted a specific type of speech (environmental) and seemed intent on restricting a specific viewpoint (that of environmentalists). While such laws rarely survive, Wyoming didn’t even come close to justifying its statutes. If the state wanted to protect private land, it just needed to pass a normal trespass law; by onlytargeting trespass when it is associated with speech, the state revealed its true, unconstitutional objectives.

We’re thrilled for the environmental advocates in Wyoming that are holding the industry accountable and supporting a free press.

We also hope this decision serves as a wake-up call to other states and puts them on notice that we will uncover – and defeat – their efforts to suppress speech, too. North Carolina and Arkansas have passed yet another version of these Ag-Gag laws, created at the behest of industrial agriculture in a brazen attempt to suppress all public whistleblowing against any employer. Maybe they will now come around and protect their citizens’ rights rather than wage an expensive legal battle that, as this decision makes clear, is almost certainly doomed to be overturned.

But we’re not waiting on those states to come to that conclusion. We’ve already sued North Carolina – and won once on appeal. This decision prompts us to fight on. Agribusiness, you’re on notice: These laws are unjust and unconstitutional, and we’ll continue to fight them from coast to coast until they have all been defeated or repealed.

This post was co-authored by Public Justice Food Project Attorney David Muraskin