Court Strikes Down “Ag-Gag” Law; plus a Journalist’s Legal Guide; State Shield for Climate Research and More

WatchDog: Court Strikes Down “Ag-Gag” Law; plus a Journalist’s Legal Guide; State Shield for Climate Research and More

By Joseph A. Davis, WatchDog TipSheet Editor

1. Federal Court Rules Utah “Ag-Gag” Law Unconstitutional

U.S. District Judge Robert J. Shelby July 7 tossed out Utah’s 2012 “ag-gag” law, which made undercover filming of livestock operations illegal. Judge Shelby ruled that the law itself violated plaintiffs’ First Amendment constitutional rights.

The federal court ruling is important because similar laws exist in other states, including Idaho, Montana, North Dakota, Missouri, Kansas, Iowa and North Carolina. Legally, a district court decision may be of limited precedential value in other federal circuits. But Idaho’s ag-gag law was also held unconstitutional by a federal district court in 2015. That case is now before an appeals court.

Pig at a Pipestone System facility in Minnesota. In 2013, the pork supplier was accused by an NGO of cruelty to animals there. PHOTO: Mercy for Animals

Plaintiffs in the Utah case were the Animal Legal Defense Fund and People for the Ethical Treatment of Animals, as well as an activist who had been charged with violating the law. The ag-gag laws target animal rights groups trying to document abusive practices at feedlots and slaughterhouses — but they also make it illegal for journalists to report on livestock operations that may affect the wholesomeness of people’s food or water pollution.

The Reporters Committee for Freedom of the Press, or RCFP, and 16 other journalism organizations filed a friend-of-the-court brief Dec. 10, 2013, arguing that Utah's ag-gag law infringes on constitutionally protected newsgathering rights. Utah’s law has been especially controversial.

The WatchDog has chronicled ag-gag laws and bills in recent years — with more state legislatures trying to pass such laws than those actually succeeding. A good report on the status of the laws and bills is here.

Iowa’s ag-gag law was an early one. Its sponsors were not alone in smearing animal-rights activists as terrorists in ways that whipped up public fears to promote the bills. Under such laws, Upton Sinclair might have been jailed for working incognito in meatpacking plants before he wrote his novel "The Jungle," considered a landmark of U.S. investigative journalism that helped spark passage of the Meat Inspection Act and the Pure Food and Drug Act.

Utah has not yet said whether it will appeal the ruling.

2. Microdots Matter: Leaking, Whistleblowing Go High-Tech

Handling leaked documents — while protecting your sources — is actually trickier than many journalists imagine. A recent case involving almost-invisible, but tell-tale, dots is an example.

After The Intercept on June 5 published a National Security Agency report that said Russians had hacked into a U.S. voting software supplier, the FBI arrested Reality Winner and charged her with leaking the document. The charging documents suggest that a color laser printer ratted out the alleged leaker.

It turns out that newer-model laser printers include a faintly visible matrix of yellow dots which can identify the date a document was printed and the serial number of the printer. If a publisher or journalist knows about this, it is easy to remove it and preserve anonymity. Alternately, journalists can use the knowledge to help identify a source.

The investigative journalism community covered this extensively. There were informative articles from Vice News, Techdirt, New York magazine, Ars Technica, Mashable and the Electronic Frontier Foundation.

Don’t say we didn’t warn you.

3. Reporters Committee Offers Legal Guide

Today’s news media presents reporters, editors and publishers with a host of legal challenges that were almost unknown a few decades ago. Now the Reporters Committee for Freedom of the Press has made available a collection of solid advice for the digital journalist.

The Reporters Committee, which watchdogs the interests of a free press, publishes the Digital Journalist’s Legal Guide online, free to anyone. It covers problems facing both traditional print and leading-edge digital journalists.

The guide covers open records and meetings law, access to courts and court documents, access to places for newsgathering, libel and privacy. Of increased importance today is its section on protecting confidential sources, including discussion of reporters’ privilege law and subpoenas.

It also goes into the emerging regulation of online content, including issues of copyright, fair use and plagiarism.

4. Rhode Island Shields Some Climate Research

Rhode Island has become the first state to shield some records of climate research from public records requests. Gov. Gina Raimondo signed a bill passed by the state’s legislature in late June that would exempt scientists and university researchers from having to disclose preliminary drafts, notes and working papers.

Under both federal and state freedom-of-information laws, the fact of government funding has in many cases been used to justify requests for climate researchers’ emails and other working documents. The FOI requests have often succeeded.

Scientists say groups opposing regulation of greenhouse emissions have used the requests as a form of harassment and intimidation — infringing on their academic freedom. An example is Penn State researcher Michael Mann, whose book “The Hockey Stick and the Climate Wars” details such harassment.

But many legitimate journalists use FOIA requests for emails and documents in their work, and they worry such exemptions will hamper efforts to discover, for example, how industry funding shapes what academics say in public. The group U.S. Right To Know has used such FOIA requests to explore connections between GMO advocates at universities and food industry funding.

5. Leaked: CRS Reports for Environmental Journos

Environmental and energy journalists don’t have to miss out on authoritative issue backgrounders from the Congressional Research Service just because Congress refuses to release them. Why? Because they leak. A House committee last month took preliminary action to make them public.

Thanks to the Federation of American Scientists’ Steve Aftergood, you can read these recent ones online.

• “Respirable Crystalline Silica in the Workplace: New Occupational Safety and Health Administration (OSHA) Standards,” Congressional Research Service (R44476), May 31, 2017, by Scott D. Szymendera.
• “U.S. Carbon Dioxide Emissions Trends and Projections: Role of the Clean Power Plan and Other Factors,” Congressional Research Service (R44451), May 31, 2017, by Jonathan L. Ramseur.
• Legal Sidebar — “President Trump’s Withdrawal from the Paris Agreement Raises Legal Questions: Parts 1 and 2,” Congressional Research Service, June 9, 2017.
• “Energy and Water Development Appropriations for Defense Nuclear Nonproliferation: In Brief,” Congressional Research Service (R44413), June 12, 2017, by Mary Beth D. Nikitin.
• “Paris Agreement: U.S. Climate Finance Commitments,” Congressional Research Service (R44870), June 19, 2017, by Richard K. Lattanzio.
• “Freshwater Harmful Algal Blooms: Causes, Challenges, and Policy Considerations,”  Congressional Research Service (R44871), June 20, 2017, by Laura Gatz.
• “U.S. Beef: It's What's for China,” Congressional Research Service (IN10724), June 22, 2017, by Joel L. Greene.
• “The North American Free Trade Agreement (NAFTA) and U.S. Agriculture,” Congressional Research Service (R44875), June 22, 2017, by Renée Johnson.
• Legal Sidebar — “Constitutional Limits on States’ Efforts to ‘Uphold’ the Paris Agreement,”  Congressional Research Service, June 27, 2017.
• “Climate Change: Frequently Asked Questions About the 2015 Paris Agreement,”  Congressional Research Service (R44609), June 28, 2017, by Jane A. Leggett and Richard K. Lattanzio.

And because WatchDog is not just about environment and energy issues, but primarily about freedom of information and First Amendment issues, here’s one about a topic that, while obscure, is important to the free flow of information, including journalism:

• Legal Sidebar — “Net Neutrality: Back to the Future (Parts One and Two),” Congressional Research Service, May 30, 2017.

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* From the weekly news magazine SEJournal Online, Vol. 2, No. 29. Content from each new issue of SEJournal Online is available to the public via the SEJournal Online main page. Subscribe to the e-newsletter here.  And see past issues of the SEJournal archived here.