8th Circuit revives challenge to Arkansas ag-gag law

Pigs are seen on a family farm in Xiaoxinzhuang village, Hebei
Pigs on a farm in China. REUTERS/Dominique Patton
  • Court splits 2-1 on question of standing to sueMajority finds chilled speech is sufficient injury

(Reuters) - A divided federal appeals court on Monday reinstated a First Amendment challenge by several advocacy organizations against Arkansas’ 2017 “ag-gag” law, which authorizes farms and other businesses to sue for as much as $5,000 per day if an undercover investigator surreptitiously records operations and shares the information in a way that harms the business.

The 2-1 decision by the 8th U.S. Circuit Court of Appeals reversed last year’s ruling by a federal judge in Little Rock, who threw out a suit by the Animal Legal Defense Fund (ALDF), Animal Equality, Center for Biological Diversity, and the Food Chain Workers Alliance against poultry processing firm Peco Foods and pig farmers Jonathan Vaught and Arkansas State Rep. DeAnn Vaught (R-Dist. 4). Rep. Vaught sponsored the 2017 law.

The lower court said the challengers lacked standing because they had alleged no concrete or “certainly impending” injury. The ALDF and Animal Equality had not yet embedded an investigator at either operation, the judge said; and even if they managed to obtain recordings, find damaging evidence and share it with the Center for Biological Diversity and the workers’ alliance, there was no guarantee that Peco or the Vaughts would enforce their right to sue for damages.

However, “a plaintiff need not expose itself to liability in order to show an injury in fact, and the statute’s deterrent effect on the investigations is sufficient to establish an injury,” Circuit Judge Steven Colloton wrote for the majority. He was joined by Circuit Judge Roger Wollman. Circuit Judge Bobby Shepherd dissented.

David Muraskin of Public Justice, who argued the appeal for all four groups, called the majority’s opinion “really good news” for the continuing fight against ag-gag laws. “Perhaps the next state will think twice” before enacting such a law, he said.

Muraskin also represents ALDF and People for the Ethical Treatment of Animals in a similar case that the 4th Circuit revived in an unpublished opinion in 2018. The majority explicitly agreed with the 4th Circuit’s analysis of standing in that case.

Arkansas’ 2017 law, “Civil cause of action for unauthorized access to property,” was closely patterned on the North Carolina law at issue in the 4th Circuit case, Muraskin said. (The district court struck down the North Carolina law on remand, and the case is now back before the 4th Circuit.)

The North Carolina and Arkansas laws represent the “evolution” of gag laws in that they protect all types of businesses to appear content-neutral, Muraskin said. Both also leave enforcement up to the targeted organization, which Kelsey Eberly of ALDF called a “ploy to make the Ag-Gag law challenge-proof” for lack of state action.

Neither Peco’s lawyers at Quattlebaum Grooms & Tull nor the Vaughts’ attorney, Roger Rowe of Lax Vaughan, immediately responded to requests for comment on Monday. As an alternate ground for affirmance, however, Peco argued that there is no First Amendment guarantee against being sued by a private party.

The 8th Circuit declined to reach that issue, saying it “goes to the merits of a claim,” rather than the court’s “power to adjudicate the case.”

“(W)e will remand the case for the district court to consider the merits in the first instance,” Colloton wrote.

The case is Animal Legal Defense Fund, et al v. Jonathan Vaught, et al, 8th U.S. Circuit Court of Appeals, No. 20-1538.

For ALDF et al: David Muraskin of Public Justice, Kelsey Eberly and Cristina Stella of ALDF, John Daniel Hays Jr of Hays Law Firm, Sarah Hanneken of Animal Equality, Hannah Connor of Center for Biological Diversity

For Jonathan Vaught and DeAnn Vaught, doing business as Prayer Creek Farm: Roger Rowe of Lax Vaughan Fortson Rowe & Threet

For Peco Foods Inc: Michael Heister and Steven Quattlebaum of Quattlebaum Grooms & Tull

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