Buffalo Field Campaign won relevant precedent just one day before U.S. Senate fracas
WASHINGTON D.C.––Legal precedents won by animal advocates are among the most recent of many behind the July 25, 2017 advice of the American Civil Liberties Union to protesters and news media that “Police may not delete photographs without a warrant, period.”
The ACLU advice was issued within minutes of alleged efforts by personnel from the U.S. Senate Sergeant at Arms and U.S. Capitol Police to confiscate and delete documentation of the removal of protesters from the Senate visitor galleries, and was followed within 48 hours by letters of objection from the National Press Photographers Association, Society of Environmental Journalists, and seven other leading organizations representing news media.
Recent Third Circuit ruling often cited
The protest itself pertained to the attempted repeal of the Affordable Care Act directed by the Donald Trump administration and U.S. Senate Majority Leader Mitch McConnell.
The most mentioned precedent for the ACLU and media organizations’ stand was a July 10, 2017 unanimous ruling by a three-judge panel from the Third Circuit Court of Appeals in Philadelphia that as Mark Joseph Stern of Slate summarized, “The First Amendment protects individuals’ right to film police officers performing their official duties. The 3rd Circuit now joins the 1st, 5th, 7th, 9th, and 11th Circuits in concluding that the Constitution guarantees a right to record,” Stern wrote. “No federal appeals court has yet concluded that the First Amendment does not safeguard the right to film law enforcement officers conducting police activity in public.”
But ruling for BFC was even more recent & also relevant
But even more recently in the background was a July 24, 2017 ruling by a three-judge panel from the Ninth U.S. Circuit Court of Appeals in San Francisco that Buffalo Field Campaign activist Anthony Reed was within his rights when on May 23, 2012 he videotaped Montana Department of Livestock agents as they hazed wild bison who had strayed from Yellowstone National Park back into the park.
Among the bison herd were newborn calves who struggled to keep up.
Recounted Matthew Brown of Associated Press, “A Gallatin County deputy,” Doug Lieurance, “issued a misdemeanor citation to Reed, alleging he obstructed a peace officer, after Reed initially would not get behind a barricade that was out of sight of the herding operations near West Yellowstone.”
Appellate panel removed judge from case
The Ninth Circuit appellate panel, Brown wrote, “said the lower court judge had wrongly accepted the version of events offered by the sheriff’s office. The account included an assertion that the presence of Reed’s vehicle on a gravel road near the herding operation presented a safety risk.”
Found the Ninth Circuit panel, “There was no genuine safety or operational reason to exclude him from parking on the gravel road.”
Continued Brown, “The judges added that Reed’s claims should have been presented to a jury, not decided by U.S. District Judge Sam Haddon. The ruling sends the case back to the district court level, to be assigned to a new judge for a jury trial.”
“Sets in stone” First Amendment rights
Assessed Buffalo Field Campaign attorney Rebecca K. Smith, “This opinion basically sets in stone that BFC volunteers have First Amendment rights to observe hazing operations and volunteers engaged in this activity cannot be falsely arrested for ‘obstruction’ if they are not interfering with the haze. It can be relied upon in future cases to protect the rights of BFC volunteers, as well as the rights of activists all over the country who are trying to peacefully observe and document government operations.”
Reed was arrested, said Buffalo Field Campaign in a media statement, “shortly after BFC volunteer evidence was used in another case brought by the Alliance for the Wild Rockies and attorney Rebecca K. Smith, who secured a federal judicial restraining order on May 14, 2012 temporarily prohibiting the Montana Department of Livestock from flying helicopters in the agency’s buffalo hazing operations.”
“Quintessential public forum”
Added Buffalo Field Campaign, “The court wrote that a public road ‘is a quintessential public forum,’ and in being there, Reed was ‘engaging in the First Amendment-protected activity of observing a government operation.’ The Ninth Circuit judges removed Haddon from the case, and reversed his decisions, finding he committed error in dismissing Reed’s First Amendment and related state claims, improperly decided factual questions and disputes reserved for the jury, such as ‘inexplicably’ applying the ‘presumption’ that the Gallatin County Sheriff ‘obeyed the law’, and abused his discretion in excluding Reed’s expert testimony on police practices.”
Wrote the Ninth Circuit appellate panel, “A jury could reasonably infer that Deputy Lieurance’s safety justification was pretextual, and in fact he sought to prevent [Buffalo Field] Campaign volunteers from observing the haze.”
Utah “ag gag” law falls
The Ninth Circuit appellate verdict in the Reed case came 17 days after U.S. District Judge Robert J. Shelby struck down the Utah “ag gag” law.
“Shelby wrote in his ruling that the law appears tailored toward preventing undercover animal-rights investigators from exposing abuses at agricultural facilities,” reported Lindsay Whitehurst of Associated Press. “Shelby said the state does have an interest in protecting the agricultural industry and a variety of ways to do it.”
Shelby concluded, however, that “Suppressing broad swaths of protected speech without justification is not one of them.”
Meaning for journalists as well as activists
Commented Society of Environmental Journalists WatchDog TipSheet editor Joseph A. Davis, “Utah’s 2012 ‘ag gag’ law 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,” Davis explained to SEJ members, “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 precedental 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.
“Plaintiffs in the Utah case,” continued Davis, “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.”
First test of the “ag gag” law was dropped
Described by Davis as “the first lawsuit in the U.S. to challenge one of the ‘ag gag’ laws,” the Utah case originated when plaintiff Amy Meyer was in February 2013 charged with the first alleged violation of the Utah ‘ag gag’ law, 11 days after using her cell phone to document conditions at the Dale T. Smith & Sons Meat Packing Company in Draper, Utah.
Meyer was standing on a public sidewalk at the time. The charge against her was dropped nine weeks later. ALDF and PETA then joined Meyer in a constitutional challenge to the law.
Second test was also dropped
A second possible test of the Utah “ag gag” law developed when four Farm Animal Rights Movement volunteers were in early January 2015 charged after accidentally driving on Circle Four Farms property near the town of Milford. The Murphy Brown/Smithfield subsidiary reportedly produces about 12 million pigs per year.
The charges that the four had violated the “ag gag” law were dropped soon after they were filed, but the defendants received citations for trespassing because they had entered a small state park without paying the entrance fee, defendant Bob Penney told ANIMALS 24-7 in 2015.
Hunter harassment law challenged
The Animal Legal Defense Fund, as well as challenging “ag gag” laws, on July 17, 2017 filed a federal court lawsuit seeking to overturn the Wisconsin “hunter harassment” law, which was recently reinforced, ALDF spokesperson Natalia Lima said, to prohibit “photographing, videotaping, approaching or even ‘maintaining a visual or physical proximity’ to a hunter.”
“The First Amendment guarantees journalists and activists the right to record and distribute truthful information on important public issues, including the inhumane treatment of wildlife at the hands of hunters,” said ALDF executive director Stephen Wells.
ALDF contends, explained Lima, that “The statute’s purpose and effect is to suppress critics of hunting. In addition to criminal penalties, the law subjects violators to civil lawsuits brought by the hunters and trappers themselves.
“The three plaintiffs in the lawsuit,” Lima said, “represented by attorneys from ALDF and a Milwaukee-based law firm,” Laffey, Leitner, and Goode, LLC, “are Wisconsin residents who, as a documentarian, journalist and activist, rely on the types of monitoring the expanded statute now prohibits.
The documentarian, Joseph Brown, is an assistant professor of digital media and performing arts at Marquette University. The journalist, Louis Weisberg, is editor and publisher of the Wisconsin Gazette, headquartered in Milwaukee. The activist, Stephanie Losse, is associated with Wolf Patrol, founded and led by longtime “direct action” proponent Rod Coronado. This fact the ALDF media release did not mention.
Who is Rod Coronado?
That Coronado is involved could be problematic, because while he has used First Amendment defenses for some of his activities, courts have repeatedly ruled that he has far overstepped First Amendment bounds. The ALDF case against the Wisconsin hunter harassment law may pivot on whether documenting Wolf Patrol activities contributes to the success of actions which would be illegal irrespective of First Amendment issues.
Coronado, 51, made his first reputation when as a Sea Shepherd Conservation Society crew member, he and fellow Sea Shepherd crew member David Howitt on November 9, 1986 sneaked aboard two Icelandic whaling vessels and scuttled them both at dockside.
From arson to AETA
Charged with arson, theft, possession of explosives, extortion, destruction of government property, and illegal interstate flight, in connection with attacks on four universities during 1991-1992, Coronado pleaded guilty in 1995 to one count of aiding and abetting arson of a research facility, plus lesser offenses. He was sentenced to serve 57 months in prison and make more than $2.5 million in restitution to Michigan State University, Oregon State University, Washington State University, and Utah State University.
Ironically, one of the laboratories destroyed by the Michigan arsons was engaged in developing the use of sperm cells as an alternative to using whole animals in toxicology research. It was located next door to a lab that conducted studies to improve the efficiency of ranching mink.
The incidents contributed to the passage of the federal Animal Enterprise Protection Act, expanded in 2006 into the Animal Enterprise Terrorism Act.
Meanwhile, Coronado and fellow activist Matthew Crozier were in December 2005 convicted by federal jury on charges of conspiring to impede or injure a U.S. Forest Service officer, a felony, and interfering with a Forest Service officer and damaging government property.
In that case, Coronado and Crozier were accused of removing traps set in the Sabino Canyon National Recreation Area, near Tucson, Arizona, to catch a puma who was allegedly menacing park visitors. The puma was originally to have been killed, but public opposition caused the park to live-trap the puma instead.
Coronado was in August 2006 sentenced to serve eight months in prison, three years on supervised probation, and was fined $100.
Meanwhile, Coronado was in February 2006 arrested on a felony charge of allegedly inciting arson through statements he made in a 2003 speech at the Lesbian/Gay/Bisexual/Transgender Community Center in Hillcrest, California.
The Coronado speech came 15 hours after an arson at a housing complex under construction in nearby University City, California, that did $50 million worth of damage. The arson was claimed by the “Earth Liberation Front,” an entity for which Coronado claimed to be an unofficial spokesperson.
After a 2007 trial on the charge ended in a hung jury, Coronado accepted a plea bargained sentence of 366 days in prison. Completing the sentence in 2008, Coronado was sent back to prison in 2010 for allegedly violating his terms of probation by accepting a Facebook “friend” request from Earth First! Cofounder Mike Roselle, who also has an extensive arrest record.
Dog breeder lost defamation case
Recent victories for animal advocates in First Amendment-related cases meanwhile came in Missouri and Illinois.
The Missouri Supreme Court on April 25, 2017 threw out a defamation claim brought by Salem, Missouri dog breeder Mary Ann Smith against the Humane Society of the U.S., which had targeted her facilities in a successful campaign to pass an anti-“puppy mill” bill, Proposition B, in 2010.
The Missouri Supreme Court ruled unanimously that the HSUS allegations that Smith’s facilities were “atrocious,” including a history of “unconscionable,” “flagrant” and “major” violations of the federal Animal Welfare Act, were constitutionally protected statements of opinion.
“Under the First Amendment there is no such thing as a false idea,” the Missouri Supreme Court verdict found. “However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.”
Pet store owners also lost
Five months earlier, in December 2016, Cook County Judge Kathy M. Flanagan invoked the First Amendment in dismissing a defamation case brought by Park Pet Shop owner Jim Sparks Jr. and Pocket Puppies Inc. owner Lane Boron against Puppy Mill Project founder Cari Meyers.
Meyers in 2014 won passage of a Chicago ordinance that allows pet stores to sell dogs and cats only if they come from pounds, shelters, or shelterless “rescues.”
Judge Flanagan found that Sparks and Boron failed to prove “actual malice” in Meyers’ opinionated statements such as that they “have always put profits over the humane treatment of animals” and that their businesses amount to “large-scale animal cruelty.”