A lawsuit challenging an Arkansas law that groups say protects farm organizations from undercover investigations into animal welfare and environmental concerns was thrown out of court Friday by a federal judge.
The 2017 law — Arkansas Code 16-118-113 — has been dubbed the "Arkansas Ag-Gag Law" by groups promoting animal welfare and environmental concerns about industrial animal agriculture. It 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. The civil penalties include damages of up to $5,000 a day.
In a 12-page order issued Friday, U.S. District Judge James Moody Jr. granted requests from the defendants — state Rep. DeAnn Vaught, R-Horatio, and her husband, Jonathan Vaught, as well as Peco Foods Inc., an Alabama-based poultry farm that has facilities in Arkansas — to dismiss the lawsuit, filed in June.
The Vaughts operate Prayer Creek Farm, a pig farm in Horatio, and Deann Vaught was the lead sponsor of the law and a member of the Farm Bureau, an industry supporter of the law. Among Peco's Arkansas facilities are slaughter and processing plants and hatcheries in Pocahontas and Batesville.
The plaintiffs are the Animal Legal Defense Fund, Animal Equality, the Center for Biological Diversity and the Food Chain Workers Alliance, a group of nonprofit organizations dedicated to reforming industrial agriculture and protecting people, animals and the environment from possible harm by the industrialized food production system.
The plaintiffs, noting that undercover investigations of industrial agricultural facilities have "proven some of the only means to demonstrate the truth" about how the facilities operate, said the Defense Fund and Animal Equality want to investigate Prayer Creek and Peco facilities in Arkansas, as they have investigated others. But they said the Vaughts and Peco wouldn't agree to letters asking them to waive their right to enforce the law for an investigation of their facilities.
The other two plaintiffs, the diversity center and the workers alliance, say they use the information gathered in such investigations — the center to further its work protecting threatened species and habitats from degradation from factory farms and slaughter operations, and the alliance to advocate for better wages and conditions for food-chain workers.
All sought a declaration that the law is unconstitutional, as well as an injunction to "stop the threat" of the law's enforcement, which they say chills their First Amendment rights and harms their equal protection rights.
Moody said the plaintiffs allege that the law injures them by causing them to self-censor their protected speech to avoid civil liability. But, he said, to show an "actual injury" for this type of pre-enforcement challenge, a plaintiff must present not just allegations but a claim of "specific present objective harm or a threat of specific future harm."
He said, "The Court finds that the allegations do not satisfy the requirements that the injury be 'concrete and particularized' and 'actual or imminent.'"
The allegations in the lawsuit, the judge said, "establish neither a 'specific present objective harm or a threat of specific future harm,'" as required under previous cases. He pointed out that an investigator hasn't been hired and consequently hasn't found any form of protected speech that the plaintiffs would try to publish.
Moody also said the plaintiffs haven't alleged that the Vaughts have engaged in the type of practices that the plaintiffs would like to expose, but have said only that they "believe" it is "likely," given "the volume of pigs their farm can maintain, the wholly-enclosed design of the facility, and Defendant DeAnn Vaught's role in sponsoring" the law.
Moody said the plaintiffs alleged that Peco "has an established history of environmental pollution and failure to comply with environmental laws," and cite their belief that "there is an important public interest in understanding how Peco operates in Arkansas."
However, "To find these allegations sufficient to satisfy the injury-in-fact requirement would be an expansion of the 'case or controversy' limitation on this Court's subject matter jurisdiction in violation of Article III," he wrote.