Two groups filed supporting briefs last week at the 8th U.S. Circuit Court of Appeals in St. Louis on behalf of nonprofit organizations whose federal lawsuit challenging Arkansas' "ag-gag law" was dismissed in February.
The plaintiffs, who appealed the dismissal in March, are the Animal Legal Defense Fund, Animal Equality, the Center for Biological Diversity and the Food Chain Workers Alliance. The groups who filed amicus, or friend-of-the-court, briefs on their behalf consist of deans, law professors and legal scholars, and separately, 23 media organizations led by the Reporter's Committee for Freedom of the Press.
The plaintiffs contend that a 2017 state law, codified as Arkansas Code 16-118-113, was intended to block undercover investigations of industrial agricultural facilities and is an unconstitutional suppression of their First Amendment and equal protection rights.
The defendants -- state Rep. DeAnn Vaught, R-Horatio and husband, Jonathan Vaught, who operate a pig farm in Horatio called Prayer Creek Farm, and Peco Foods Inc., an Alabama-based poultry farm that has facilities in Arkansas -- say the law merely creates a way for farmers or merchants to sue someone who intrudes on nonpublic areas of commercial property and takes pictures or steals data.
The law creates an avenue for civil litigation against anyone who releases documents or recordings from a nonpublic area of commercial property with the intent of causing harm to the owner of the business or farm. It allows for civil penalties of up to $5,000 a day.
In throwing out the lawsuit in February, U.S. District Judge James Moody Jr. said the plaintiffs alleged in their "pre-enforcement challenge" that the law injures them by causing them to self-censor their protected speech to avoid liability. But he said they didn't present any specific "actual or imminent" harm they faced as a result of the law.
Moody also noted that the plaintiffs didn't allege that the Vaughts, whose Arkansas facilities include slaughter and processing plants and hatcheries in Pocahontas and Batesville, had actually engaged in the types of practices the plaintiffs say they would like to "expose."
He said the plaintiffs merely suspect improper practices based on the number of pigs at the pig farm, the design of the facility and DeAnn Vaught's role as a sponsor of the legislation.
The brief submitted by constitutional law specialists says the lawsuit's main objective is the concern that if the plaintiffs violate the law, they face liability for engaging in constitutionally protected conduct.
The legal experts say that if Moody's ruling is left intact, it "would drastically limit the ability of federal courts to protect rights guaranteed by the First Amendment."
The legal group called Moody's reason for dismissing the lawsuit "deeply flawed," saying the 8th Circuit must decide whether state-facilitated suppression of speech creates a "reasonable fear" of state-sanctioned liability. If the appellate judges believe it does, they must decide, "can the right to challenge the statute before risking the penalties inherent in violating it be foreclosed by finding that there is no standing to contest the constitutionality of the law?"
"Under the district court's logic," the brief argues, "Plaintiffs were required to knowingly violate the statute and risk all the penalties" before they could be considered to have legal standing --a vested interest in the outcome of the case -- to enable them to pursue the issue.
"Waiting for the actionable conduct to occur before the law can be challenged in court only perpetuates the chilling effect of the law, because the fear of penalties chills protected speech," the legal group argued.
They described the plaintiffs as "organizations dedicated to exposing illegal and unethical conduct in public and private industries, including organizations that engage in undercover investigations to expose animal cruelty," who want to continue to engage in practices protected by the First Amendment in the future.
They noted that other courts have found that permitting pre-enforcement First Amendment challenges to go forward is important for reasons of public concern.
The brief filed by news organizations asks the 8th Circuit to consider its input, noting, "As members and representatives of the news media, amici have a strong interest in the resolution of this appeal.
For more than a century, investigative reporting on the agriculture industry has helped keep our food supply safe and prevented the mistreatment and abuse of workers, as well as livestock and other animals."
It notes that journalists who cover the agriculture industry rely on sources, such as the plaintiffs, to inform them of dangerous, illegal or unethical activities and provide documentation. The brief argues that the media members "have a strong interest in ensuring that their news-gathering and reporting are not impeded by unconstitutional restraints on sources."
The Arkansas Ag-Gag Statute, they said, chills the ability of sources to speak to reporters, "and, in turn, restricts the flow of newsworthy information" and stifles debate on matters of public concern.
"The chilling effect is an injury sufficient to support [the plaintiffs'] standing," they wrote.
The 8th Circuit has directed the defendants to file a brief by the end of this month. No additional deadlines or hearings have been set.