Showing posts with label agriculture. Show all posts
Showing posts with label agriculture. Show all posts

Friday, August 20, 2021

Tenth Circuit affirms injunction of Kansas ag gag law

My dog Rocky (2001-2019) at the Tallgrass Prairie National Preserve, Kansas, 2009
(RJ Peltz-Steele CC BY-NC-SA 4.0)
The Animal Legal Defense Fund has prevailed in an ag gag case in the Tenth Circuit, a three-judge panel upholding permanent injunction of the Kansas law.

I wrote recently about ag gag in the Eighth Circuit, where the court sustained a criminal prohibition on entering agricultural facilities on false pretenses.

The Kansas law was impermissibly viewpoint discriminatory, the Tenth Circuit panel held, in its requirement that the offender bear "intent to damage the enterprise conducted at the animal facility."  Because the law criminalized conduct exclusively with reference to the protected expression that would follow from entrance and recording on agricultural property, the court rejected the government's argument on appeal that the statute criminalized only conduct, not speech.

In dissent, U.S. Circuit Judge Harris Hartz—a member of the Judicial Education Advisory Board at the George Mason Law and Economics Center, participant in the Third Restatement of Agency, and once an academic—opined that merely retrenching the statutory definition to intentional deception would render the statute constitutional.  Judge Hartz and the majority found themselves in an R.A.V.-Wisconsin v. Mitchell tug of war, familiar to First Amendment scholars and law students, over whether the statutory intent requirement merely described mens rea or constituted impermissible viewpoint discrimination.

The dissent demonstrates what I wrote last week, that ag gag laws typically fail for overreach, but can be drafted constitutionally, thus, the mixed outcome in the Eighth Circuit.

The case is ALDF v. Kelly, No. 20-3082 (10th Cir. Aug. 19, 2021).  U.S. Circuit Judge Carolyn McHugh affirmed in the majority opinion, which was joined by her fellow Utahn Senior Judge Michael Murphy. Labor organizations, law professors, and a profusion of media organizations, including the Reporters Committee for Freedom of the Press and Kansas press and sunshine advocates, lined up as amici against the Kansas law.

Wednesday, August 11, 2021

'What is truth?': 8th Circuit wrangles over ag gag

The Eighth Circuit reached mixed outcomes yesterday in First Amendment review of the Iowa "ag gag" law, upholding a criminal prohibition on entering agricultural production facilities under false pretenses.

Sausage packing in Chicago, 1893
"Ag gag" refers to laws designed to deter undercover investigative reporting on the agricultural industry, especially by criminalization. On the one side, journalists, public health advocates, and animal rights activists point to a tradition of undercover reporting dating to the Upton Sinclair muckraking classic The Jungle (1906), which exposed labor exploitation in the meat industry.

Journalist and professor Brooke Kroeger—who filed an amicus with the Eighth Circuit in the instant case—in her book Undercover Reporting: The Truth About Deception (2012), actually traces the tradition farther back, to reporting on slavery and human trafficking in the 19th century.  For a more recent entry in the genre, check out Michael Holtz's fascinating pandemic-era report, in last month's Atlantic, from inside a Kansas slaughterhouse.

On the other side, private business and advocates for private property rights point to the simple proposition that falsehood is impermissible in commerce and should not be permitted to facilitate trespass and undermine (markedly unidirectional) employee loyalty.

Insofar as the problem boils down to the criminalization of falsity, a fuzziness surfaces in First Amendment fundamentals.  The U.S. Supreme Court has long recited competing mantras on the permissibility of state regulation of falsity.  For example, commercial speech doctrine cuts a wide berth for the regulation of false and misleading expression, allowing free speech and consumer protection law to coexist upon the premise that falsity has no social value.  At the same time, First Amendment doctrine in areas such as defamation law, animated by the Miltonian-Millian philosophy of liberty, tells us that a free marketplace of ideas must allow for the expression of falsity so that truth can be tested and revealed.

The Court tackled this dichotomy in United States v. Alvarez in 2012, striking down part of the Stolen Valor Act of 2005, which criminalized misrepresentation of military honors.  But the Court fractured on rationale.  The plurality applied First Amendment strict scrutiny, and a concurrence would have applied intermediate scrutiny.  No one challenged the negligible scrutiny that abides criminalization of falsity in perjury, for example.  The distinction that upped the ante in Alvarez was the statute's "sweeping, quite unprecedented reach," regardless of context, regardless of motive.  Whereas a perjury prohibition plainly protects the integrity of the judicial process, the Stolen Valor Act pertained "to a false statement made at any time, in any place, to any person," for any reason.

And it was on that distinction that the Eighth Circuit perceived a difference in two provisions of the Iowa ag gag law.  One provision the court, affirming the district court, struck down, concerning the criminalization of false statements on an employment application.  The Iowa legislature, like Congress in Alvarez, overreached.

The proscription of the Employment Provision does not require that false statements made as part of an employment application be material to the employment decision.... [The statute] allows for prosecution of those who make false statements that are not capable of influencing an offer of employment. Plausible scenarios abound: the applicant falsely professes to maintain a wardrobe like the interviewer’s, exaggerates her exercise routine, or inflates his past attendance at the hometown football stadium.

The court reached a different conclusion on the provision prohibiting access to agricultural production facilities upon false pretenses.  That implication of falsity was sufficiently linked to "a legally cognizable harm—namely, trespass to private property"—that the court placed the provision beyond First Amendment review, distinguishing the ag gag law from the Stolen Valor Act.  "The better rule in light of Alvarez is that intentionally false speech undertaken to accomplish a legally cognizable harm may be proscribed without violating the First Amendment."

The opinion has a bit of candy for tortheads, too, in reasoning that even trespass warranting only nominal damages is "a legally cognizable harm."  "Trespass is an ancient cause of action that is long recognized in this country. See United States v. Jones [U.S. 2012]; 3 William Blackstone, Commentaries  ... ," the court began.

[The district] court’s own citation to Black’s Law Dictionary acknowledged that nominal damages are "awarded when a legal injury is suffered but there is no substantial loss or injury to be compensated." Damages, Black’s Law Dictionary (10th ed. 2014) (emphasis added). Nominal damages are not "purely symbolic, a mere judicial token that provides no actual benefit to the plaintiff." Uzuegbunam v. Preczewski [U.S. 2021]. They are, rather, damages paid to a plaintiff that provide redress for an injury. Id.... Even without physical damage to property arising from a trespass, these damages may compensate a property owner for a diminution of privacy and a violation of the right to exclude—legally cognizable harms. See ALDF v. Wasden ... (9th Cir. 2018) (Bea, J., dissenting in part and concurring in part); see also Cedar Point Nursery v. Hassid [U.S. 2021] ("The right to exclude is one of the most treasured rights of property ownership.")....

The complainant in the Iowa case is the Animal Legal Defense Fund (ALDF), which has litigated and is litigating ag gag challenges throughout the country.  (I'm faculty adviser for the Student Animal Legal Defense Fund at UMass Law.)

The first time I testified in a legislative hearing, in my first year of teaching in 1998, I spoke, at the invitation of the Society of Professional Journalists, against an Arkansas ag gag bill.  The bill died in committee.  In the 1990s, an earlier generation of ag gag laws targeted speech about Big Ag as a form of civil or criminal defamation.  That approach was especially vulnerable to First Amendment challenge.

Food Lion Kings Mountain, N.C.
(Mike Kalasnik CC BY-SA 2.0)
At the same time, in the 1990s, the Food Lion case against ABC News, over undercover reporting on food mishandling, was playing out in the courts.  By decade's end, Food Lion prevailed against the ABC defendants for trespass and breach of the employee duty of loyalty, but not for defamation or fraud.  Big Ag learned to reframe ag gag to focus on conduct, rather than speech.  The next generation of ag gag laws aimed to protect private property against trespass, feigning ignorance of First Amendment implications.

Presently, the ALDF is fighting a broad Arkansas ag gag law, in the property-protective vein, enacted in 2017.  On Monday, the day before the Iowa opinion was announced, the Eighth Circuit revived and remanded the ALDF suit in Arkansas.  The district court had dismissed upon an erroneous understanding of First Amendment standing.  The Arkansas law is a model of special interest legislation enacted at the behest of Big Ag power-player Vaught Farms.

The Eighth Circuit opinions in both the Iowa case and the Arkansas case were authored by Judge Steven Colloton, an Iowan.  Judge Colloton had different co-panelists in each case, and both panels generated a dissent.  In the Iowa case, Judge Raymond Gruender, a Missourian reportedly short-listed by President Trump for the Supreme Court, would have upheld the Iowa law in both provisions.  In the Arkansas case, Judge Bobby Shepherd, an Arkansan criticized for upholding Missouri anti-abortion laws to set up a challenge to Roe v. Wade, tracked the erroneous reasoning of the district court on standing.

I find worth quoting a short concurrence in the Iowa case.  Judge L. Steven Grasz, a Nebraskan, hints at the relationship between ag gag and the bigger First Amendment picture of our contemporary misinformation crisis.

This nation was founded on the concept of objective truth ("We hold these truths to be self-evident...."). And some of our nation's oldest institutions were founded as instrumentalities of the search for truth (Veritas). The quest for truth has not, of course, ended; nor has the clash between the free flow of ideas and the desire to punish untruthful speech that is perceived as harmful. The law has long provided for legal consequences for false speech constituting fraud, perjury, and defamation. The present case, however, presents a new category of deceit which the State of Iowa seeks to penalize. Some see it as investigative journalism. Others see it as lying to further an agenda at the expense of private property rights. In either sense, its punishment presents a legal dilemma between protecting property and protecting speech. While some have always questioned whether truth can be known ("What is truth?"), our task is not to answer that question but simply to determine whether the constitution allows the government to criminally punish falsity in the specific context of the statute before us.

I join the court's opinion in full because I believe it is consistent with current law, as best we can determine it from limited and sometimes hazy precedent. Still, I do so hesitantly as to the Access Provision. The court's opinion today represents the first time any circuit court has upheld such a provision. At a time in history when a cloud of censorship appears to be descending, along with palpable public fear of being "cancelled" for holding "incorrect" views, it concerns me to see a new category of speech which the government can punish through criminal prosecution. Ultimately, the Supreme Court will have to determine whether such laws can be sustained, or whether they infringe on the "breathing room" necessary to effectuate the promise of the First Amendment.

Going forward, a key question will be whether access-by-deceit statutes will be applied to punish speech that has instrumental value or which is tied to political or ideological messages....

In general, public interest constitutional litigation against state ag gag has fared very, very well in the courts.  So the Eighth Circuit distinction on the Iowa access provision bucks the trend, which is not to say the court was mistaken.  To my mind, most of the victories against ag gag, as in the Iowa case, have derived from legislative overreach.  As I told the Arkansas committee in 1998, it is possible to draft an "ag gag" bill that would pass constitutional muster.  But such a statute would substantially duplicate the existing tort law of trespass, fraud, and product disparagement.  And while common law tort accommodates constitutional norms by design, rigid statutes are more prone to invite expensive legal challenge in the application.

The real problem, politically for Big Ag, is that it wants more than tort law gives, or than constitutional law permits.  And for public interest advocates, the problem ultimately is one of policy, not constitutional law.  Legislators must be motivated to choose accountability over campaign donations, and the public must be motivated to care about labor conditions and animal welfare, even when opacity precludes investigation.

These cases also resonate in the vein of transparency and access in the private sector.  As I have written previously, contemporary social and economic woes increasingly arise from private-sector abuse of public trust, and our cramped notion of state action is critically diminishing democratic accountability.

The Iowa case is Animal Legal Defense Fund v. Reynolds, No. 19-1364 (8th Cir. Aug. 10, 2021).  The Arkansas case is Animal Legal Defense Fund v. Vaught, No. 20-1538 (8th Cir. Aug. 9, 2021).

Tuesday, June 29, 2021

'1,000 Places to Fall to Your Death,' Utah edition, means American tort law hasn't undermined pioneer spirit

I can't help but check out the tortscape when I travel.  As mentioned last week, I have been traveling recently in Utah.  The sights are breathtaking.  And as an indicator of the health of the American tort system, I am pleased to report, Utah has many places where one can fall to one's death.

If your foreign friends are like mine, then you too are tired of being teased about fencing at the Grand Canyon, supposedly erected by the National Park Service to protect itself from lawsuits.

It's nonsense, of course.  There are a very few railings and barriers installed at the most popular viewing areas at the Grand Canyon.  Given the often present throng, the limited installations are only sensible, to protect the canyon as well as the people.  Plenty of visitors still manage to fall and die.  And if anything about such deaths speaks powerfully to "the American way," it's the sovereign immunity that usually dispatches any subsequent lawsuits.

(In all seriousness, for a tragic and compelling problem in this vein, and an excellent case for torts profs to introduce the Federal Tort Claims Act, see the recent and pending claim against the National Park Service by the family of Esther Nakajjigo, a human rights activist and tourist who was decapitated by a swinging traffic control gate at Arches National Park in Utah in 2020.  Read more from Moab Sun News, NBC News, Fox13 Salt Lake City, and Yahoo News Australia.  The case is Michaud v. United States, No. 1:21-cv-01547-KLM (filed D. Colo. June 8, 2021) (Court Listener).)

Railings such as these represent a reasonable exercise of discretion by any global measure:
surrounding a viewing platform at Sipapu Bridge at Natural Bridges National Monument.



My friends' teasing persists because it capitalizes on two stereotypes of Americans: first, as camera-happy tourists who don't know how to handle themselves when voyaging giddily away from home on their precious ten days of unguaranteed vacation; and second, as lawsuit-addicted complainants eager to forsake personal responsibility for a pay day.  Corporate America's tort-deform messaging has saturated the globe.

I should know better.  But, I admit, my insecurities are allayed whenever I discover a new place one can fall to death amid the sublime splendor of an American natural wonder.  And I found many such places in Utah.  I'm thinking about writing a book in the vein of Patricia Schultz's 1,000 Places to See Before You Die.  Mine will be "1,000 Places to Fall to Your Death in America."  It's simultaneous travel literature and tort-reform opposition.

This is my favorite new candidate for the book: Kodachrome Basin State Park in Utah.  It's oddly appropriate because the park is in fact named after a corporation.  National Geographic featured the land in color photography in 1949 and, with permission of the Eastman Kodak company, named the area after the company's pioneering color film, which had been introduced in 1935 (and was discontinued in 2009).  The park is a worthwhile stop, or destination unto itself, on Utah's famed Scenic Byway 12, near Cannonville.

Kodachrome Basin boasts some 67 "sedimentary pipes," columns of rock rising from the basin floor.  According to park literature, the pipes are the result of erosion, but geologists are not sure whether historical earthquakes or ancient springs explain the erosion-resistant columns.  There are more than 14 miles of trails in the park from which one can see the pipes and take in the park's chromatic appeal.

I did one of the shorter hikes. The 1.5-mile Angel's Palace Trail rises 150 feet from the basin floor to afford views from Kodachrome to nearby Bryce Canyon.  Angel's Palace offers many short side tracks to scenic viewpoints, like this one:

Here's a 360-degree panoramic:
The trail drops off on both sides:
If you meander down this pathway, it narrows to a small rocky point, maybe 10 square inches of a rounded top of crumbly rock, where, I suppose, someone with a death wish could make a killer TikTok hopping on one foot.  I got only far enough along to take this photo:

In further furtherance of the pioneer spirit, there's one other unmitigated way to die in Utah, and that's in an agricultural encounter.  At the American West Heritage Center in Wellsville, Utah, I was surprised to see this sign:

In 1L Torts, I always include some coverage of sector-specific statutory liability limitations, usually adopted to protect domestic businesses especially from suit by out-of-state tourists.  In my first year as a legal writing instructor in the 1990s, colleagues and I used a problem involving the Colorado skier responsibility law.  Utah has one, too.  This was the first time, though, that I've learned of a sector-specific liability limitation in "agritourism."  Actually, this was the first time I ever heard of agritourism (also "agrotourism").

The cited section of the Utah Code indeed defines agritourism as "the travel or visit by the general public to a working farm, ranch, or other commercial agricultural, aquacultural, horticultural, or forestry operation for the enjoyment of, education about, or participation in the activities of the farm, ranch, or other commercial agricultural, aquacultural, horticultural, or forestry operation."

The statute doesn't depart radically from the negligence standard, but, like the sign says, affords service providers an assumption-of-risk defense when signs are posted.  The statute specifies risks inherent in agritourism:

a danger, hazard, or condition which is an integral part of an agricultural tourism activity and that cannot be eliminated by the exercise of reasonable care, including:
     (i) natural surface and subsurface conditions of land, vegetation, and water on the property;
     (ii) unpredictable behavior of domesticated or farm animals on the property; or
     (iii) reasonable dangers of structures or equipment ordinarily used where agricultural or horticultural crops are grown or farm animals or farmed fish are raised.

I didn't run into any of those problems.  I must be a pioneer at heart.

Me holding up a natural bridge on the Hickman Bridge Trail, Capitol Reef National Park
(All photos by RJ Peltz-Steele, CC BY-NC-SA 4.0.)

Friday, June 25, 2021

Drought grips western U.S., induces ag angst in Utah

Salt Lake City—I’ve been traveling in Utah, so have witnessed the drought gripping the West.  I’m no climate scientist, so I can’t say how far off normal conditions are.  Here is what I've seen and been told.

This was my first time in Salt Lake City (SLC), at least beyond the airport.  It’s a remarkable place.  Having visited the cedars of Lebanon and driven the Dead Sea highway in Jordan, I understand now why the Mormon pioneers of 1847 thought there was something divinely ordained about the cedar break at the Great Salt Lake.

Salt Lake City overlook from Desolation Trail in Millcreek Canyon
I've wanted to see the Great Salt Lake as long as I can remember, but especially since reading Terry Tempest Williams's natural history-classic Refuge in the 1990s.  The Great Salt Lake's salinity tops out at about 27%.  That's shy of the roughly 34% of the Dead Sea, but still enough to preclude any waterborne animal life bigger than a brine shrimp.

Great Salt Lake from Great Salt Lake State Park
 

Bison on Antelope Island in the Great Salt Lake; Salt Lake City in the distance
At the same time, from a contemporary, climate-wary perspective, one can’t help but look at SLC and think, “Maybe this shouldn’t be here” (a sentiment admittedly more apt with regard to desert cities to the west, such as Las Vegas).

Salt Lake City from atop the Utah Capitol Steps

I have seen warnings all around Utah not to park cars on dry grass, for fear of fire.  The rotatable Smoky-the-Bear fire danger signs are dialed up to “Extreme.”  Radio ads ask me to “slow the flow,” limiting my use of water.  Yesterday morning, June 24, it rained in SLC for the first time since May 23.  The local weather announcer gleefully reported 0.02” accumulation by 9:30 a.m. 

At Lake Powell, water levels are too low for the ferry to operate between Halls Crossing and Bullfrog.  Near Hite, Utah, in the Glen Canyon National Recreation Area, a dusty red campground sits eerily vacant astride a dry riverbed where the Colorado River falls shy of Lake Powell’s north end.

In wetter times, a waterfront campsite at the Glen Canyon National Recreation Area
 

Dry riverbed between the Colorado River (at left) and Lake Powell
A signboard with tips to “Play It Safe in the Water,” picturing jubilant boaters, gives the campground a “Planet of the Apes” feel of abandoned human infrastructure.  We often think about climate change in terms of rising sea levels, but the opposite happens, too.

"Play It Safe in the Water"
The chatty clerk at the Hollow Mountain convenience store in Hanksville told me with a pained face that she has never seen it so dry, and, she added, her memory goes back to 1964.  She didn’t strike me as much older than 60, so I’m assuming she’s been in Utah all her life.

Hollow Mountain, Hanksville
An innkeeper in Escalante was less concerned.  He said that the drought is affecting agriculture, and that might be a welcome wake-up call to abate the cultivation of water-intensive crops that should not have been planted where they are anyway.  “Culinary water” has not been affected, he said; the area provides ample water for human settlement and tourism.
Settlers planted orchards at what is today Capitol Reef National Park.
The place that most stoked my concern and compassion was the Navajo Nation on Utah’s southeastern border.  At a Navajo-family-run inn and café in Mexican Hat, just above the border, a server told me that the area hasn’t seen a torrential rain for 10 years.  She seemed to me maybe 19, so I wonder whether she remembers.

The San Juan Inn overlooks the San Juan River, which also feeds Lake Powell.
Meanwhile, the local economy is reeling, as it seems Navajo Parks and Recreation will not be reopening touristic sites, such as Monument Valley Tribal Park, for another summer.  It’s been hard, the young server told me.  But we’ve always survived here, she said of the Navajo, so we’ll adapt.  I found the sentiment rousing, but couldn’t decide if it was wise or naïve.

Anyway, her 84-year-old grandmother makes a mean salsa verde enchilada with a Navajo-chili-style filling.

Salsa verde enchilada at The Juan Cafe, Mexican Hat
(All photos by RJ Peltz-Steele, CC BY-NC-SA 4.0.)