THE BLOG
08/04/2015 03:46 pm ET Updated Aug 04, 2016

Idaho's Anti-Whistleblower Ag Gag Law Ruled Unconstitutional

By Amanda Hitt

An Idaho court found that agricultural whistleblowing is not a crime. Consumers who want to know the truth about the food system won a big victory this week against the culture of silence thanks to U.S. Chief Judge B. Lynn Winmill, who struck down Idaho's anti-whistleblower Ag Gag law. He ruled the legislation unconstitutional, stating:

The effect of the statute will be to suppress speech by undercover investigators and whistleblowers concerning topics of great public importance: the safety of the public food supply, the safety of agricultural workers, the treatment and health of farm animals, and the impact of business activities on the environment.

The agriculture industry is not known for its transparency. But increasingly routine undercover investigations showing mistreatment of animals have inspired more public interest in how these operations run and what's really happening behind the barn doors. Despite the public outcry, the industry hasn't changed its behavior. Discovered and seeing a threat to their bottom lines, industry lobbyists have pushed state legislators to enact Ag Gag statutes that essentially make it a crime to report a crime.

The Idaho law didn't just try to stop undercover investigations; it attempted to silence the truth and truth-tellers - even whistleblowing employees. The Court mentioned an example of a dutiful employee witnessing malfeasance on the job: "If a diligent and trusted longtime employee witnesses animal abuse or life-threatening safety violations and records it without authorization, the employee could face up to a year in jail and be forced to pay damages..." Such a consequence would surely chill the speech of a would-be whistleblower grappling with whether to come forward with information.

Whistleblowers have never played a more important role in society. Their unparalleled access to information makes them critical in uncovering waste, fraud, abuse of power, and threats to public health and safety. They are in the unique position, as insiders, to detect, uncover, and alert the public to looming problems. Their importance is illustrated by the fact that federal laws protecting whistleblowers have more than doubled in the past 15 years.

But it's not the same at the state level. States have been legislating for anti-whistleblower Ag Gag bills in alarming numbers. Since 2012, 23 states have proposed such bills and five have adopted them. These Ag Gag laws reverse the federal trend toward protecting whistleblowers and vilify agriculture whistleblowers instead. Thankfully, the court in Idaho took note of this anomaly, stating that the legislation "discriminates on its face by classifying between whistleblowers in the agricultural industry and whistleblowers in other industries."

The Court also emphasized the utility of undercover video, often relied upon by whistleblowers who justifiably fear retaliation when going through internal channels to report wrongdoing.

Audio and visual evidence is a uniquely persuasive means of conveying a
message, and it can vindicate an undercover investigator or whistleblower who is
otherwise disbelieved or ignored.

This pro-whistleblower decision is a significant win for everyone who cares about the state of the food supply, whether it's food safety, animal welfare, worker rights, or the environment. The court in Idaho acknowledged that Ag Gag is nothing more than the industry's attempt to stifle negative criticism, and that "food production is not a private matter." Hopefully, courts deciding the constitutionality of Ag Gag in other states will agree.

Amanda Hitt is Director of the Food Integrity Campaign, a program of the Government Accountability Project - the nation's leading whistleblower protection and advocacy organization.