Tuesday, July 9, 2019

MFIA Argues Against Iowa Law that Criminalizes Undercover Reporting

In recent years, states across the country have tried to stop news reporting about unsavory or unethical practices at slaughterhouses, industrial farms, and other food processing facilities. Through a coordinated campaign to enact so-called “agricultural-gag laws,” states have used various methods to cut-off unwanted publicity on this topic, including creating criminal penalties for unauthorized photography, special trespass rules and more.

On June 27, the Media Freedom and Information Access (MFIA) Clinic at Yale Law School submitted an amicus brief to the U.S. Court of Appeals for the Eighth Circuit arguing that an Iowa law — which outlaws the practice of deception as a means to access to agricultural facilities — explicitly violates the First Amendment’s protection of newsgathering.

The law in question, Iowa Code §717A.3A, made it a crime to gain entry into an agricultural or food processing facility under false pretenses. After the law was voided and deemed a “content-based restriction” on speech by the United States District Court in Iowa, the State appealed.

MFIA’s amicus brief supports the District Court’s determination, but for a different reason. The brief states that the First Amendment independently protects the activity of newsgathering, and that the Iowa law seeks to outlaw the time-honored tradition of undercover reporting. 

“While the Supreme Court has yet to fully delineate the contours of the constitutional protection of newsgathering,” according to the brief, “it has made clear that the First Amendment protects against laws that target the activities of journalists and unduly burden their newsgathering.”

MFIA co-authored the brief with the Civil Liberties and Transparency Clinic at the University at Buffalo School of Law. The clinics represent 24 First Amendment and information law scholars who all agree that Iowa’s attempt to outlaw undercover reporting at food processing facilities is blatantly unconstitutional.

Undercover work often plays a critical role in unearthing stories that could not otherwise be reported. The brief presents many examples from the history of investigative journalism of significant stories that would have been impossible to tell without going undercover – from Northern journalists covering the conditions of slaves in the South, to more recent investigations into potentially illegal practices in employment, housing, public accommodations, and consumer fraud.

According to the brief, “the Act outlaws this legitimate and long-standing method of newsgathering precisely because it has been an extraordinarily effective — perhaps the most effective — means of reporting true, newsworthy stories that gain strong public attention. Iowa may not seek to silence such reporting by imposing targeted prohibitions on newsgathering methods needed to produce it.”

The principle authors of the Eighth Circuit brief are Floyd Abrams Clinical Lecturer in Law David Schulz, Clinical Lecturer in Law Francesca Procaccini, and Visiting Clinical Lecturer in Law Chuck Sims from MFIA and Assistant Clinical Professor Jonathan Manes from the University at Buffalo.

The U.S. Court of Appeals for the Ninth Circuit recently struck down an Idaho “ag-gag” law that banned all filming of agricultural facilities (without the owner's permission). In that case, MFIA filed a brief advocating for the court to recognize a First Amendment right to record matters of public concern. The court ultimately ruled the Idaho law unconstitutional and determined that filming undercover is indeed protected by the First Amendment.

by Leah Ferentinos