Idaho case shows need to protect whistleblowers

A federal judge was right to strike down Idaho’s so-called “ag-gag” law — which made it a criminal offense to enter agricultural facilities by misrepresentation in order to record animal abuse. And the “famous potatoes” state is wrong to ask the 9th U.S. Circuit Court of Appeals to overturn the ruling.

Because this isn’t really about business privacy — it’s about punishing whistleblowers instead of wrongdoers. In fact, the issue goes far beyond agriculture to the broader topic of activists misrepresenting themselves in order to gain access to places otherwise off -limits to them in order to document perceived wrongdoing, including the undercover operation on Planned Parenthood. But let’s start with the Idaho case and its ties to New Mexico. The Idaho law, passed in 2014, was sought by that state’s huge dairy industry, which complained that undercover videos of cows being abused at a southern Idaho dairy had damaged the dairy business. Animal rights activists, civil rights groups and media organizations sued to overturn the law, saying it criminalized a long tradition of undercover journalism and would require people who expose wrongdoing to serve up to a year in jail and pay restitution to the businesses they target. The federal judge’s 2015 ruling was the first time an ag-gag law — designed to “gag” those who would expose wrongdoing in the agricultural industry — was struck down.

Seven states have similar ag-gag measures, and New Mexico Sen. Cliff Pirtle, R-Roswell, has introduced similar measures here, so far without success.

You might recall that in 2014, a two-month undercover investigation by the anti-cruelty group Mercy for Animals (the same group that made the Idaho videos) recorded dairy workers shocking cows with electrified rods, whipping them with chains, throwing calves into trucks, and dragging downed cows with machinery at the now-defunct Winchester Dairy in Dexter — which lies in Pirtle’s district. The resulting outcry prompted an investigation and four dairy workers being charged with animal cruelty. Similar investigations nationwide at dairies, slaughterhouses and large-scale chicken farms have led to prosecutions — and more ag-gag laws.

The tenets of the Idaho ruling, by extension, also should apply to the 2015 case in which anti-abortionists, posing as representatives of a nonexistent biotechnology company, visited abortion clinics and later released heavily edited videos on how those facilities provide fetal tissue to researchers.

After numerous federal and state investigations found no wrongdoing on the part of the abortion providers, the posers, David Daleiden and Sandra Merritt of the Center for Medical Progress, were charged with 15 felony counts under California law — one for each of the people they filmed without consent, and one for criminal conspiracy to invade privacy. That case remains pending. Congressional conservatives and others have used the case as a basis for defunding Planned Parenthood, which receives some federal funding and spends about 3 percent of its total funding on abortion services.

As diverse as they are, the dairy cruelty and anti-abortion cases show the difficulty courts and legislatures face when trying to determine if, or when, a means justifies an end. While it’s evident such undercover operations can provide valuable information that would likely go unreported otherwise, it’s also evident the information is often used to advance personal agendas and ideologies.

But there’s a reason Americans have put systems in place, from the Better Business Bureau to industry inspectors to whistleblower protections: They expect everyone, from nonprofits to for-profits, to be good neighbors, operate within the law and be held accountable when they don’t.

Ag-gag laws like Idaho’s incorrectly escalate a firing offense — lying on a job application — to a criminal one. And they place a troubling chilling effect on anyone who would try to shine a light on wrongdoing by making the would-be whistleblower the criminal instead of the purported wrongdoer.