Do Federal Judges Protect Journalists Exposing Animal Abuse More Than Journalists Exposing the Abortion Industry?

That’s the question I’ve been asked after two federal court rulings on Monday. In Idaho, a federal district court judge struck down an Idaho statute that criminalized efforts to gain access to agricultural facilities for the purpose of undercover investigation. As the court noted, “Under the law, a journalist or animal rights investigator can be convicted for not disclosing his media or political affiliations when requesting a tour of an industrial feedlot, or applying for employment at a dairy farm.” In addition, “An employee can be convicted for videotaping animal abuse or life-threatening safety violations at an agricultural facility without first obtaining the owner’s permission.”

In striking down the statute, the Court noted that the statute “strik[es] at the heart of important First Amendment values. The effect of the statute will be to suppress speech by undercover investigators and whistleblowers concerning topics of great public importance: the safety of the public food supply, the safety of agricultural workers, the treatment and health of farm animals, and the impact of business activities on the environment.”

In California, a federal district court judge extended a temporary restraining order against the Center for Medical Progress (CMP), prohibiting it from releasing recordings from its undercover investigation of the National Abortion Federation (NAF). CMP journalists had signed a confidentiality agreement to obtain access to an NAF event, an agreement that included a provision allowing for injunctive relief in the event of breach.

Explaining his decision, the judge said, “Defendants’ counsel candidly agreed that he was not aware of any case that has held that a party who (1) by false pretenses gains access to confidential information, (2) promises to keep the information confidential, and (3) agrees that breach of his agreement would subject him to injunctive relief, may nonetheless violate that agreement because of his First Amendment rights.”

The Idaho court clearly reached the right result. The statute created a broad zone of protection for a favored industry. In California, the analysis is different, pitting traditional First Amendment doctrines decrying prior restraints against a confidentiality agreement (and, it should be noted, an Obama-bundler judge.) But while the legal issues were distinct, the California court’s ruling is still problematic.

The problems with the California court’s brief ruling include: (1) The Judge read the confidentiality agreement extraordinarily broadly, to bar release of information even if it wasn’t obtained during NAF meetings but rather during meetings at a “restaurant” or in the “hallway;” and (2) he issued this sweeping ruling without appropriate consideration of the strong First Amendment interests prohibiting prior restraints and protecting journalistic activity. In other words, to the extent that he sought to enforce the confidentiality agreement, he should have done so on the narrowest grounds, resolving any doubts in favor of free expression and against prior restraints. He did the opposite.

Going back to the core question – did two federal judges apply two different standards on questions of animal rights and abortion? The answer is no . . . and yes. No, the cases did not involve the same legal issues, so the core First Amendment analysis isn’t the same in Idaho and California and was thus not inconsistent. At the same time, however, yes. In the animal rights case, a federal judge applied a straightforward legal analysis to protect core First Amendment rights. In the abortion case, a federal judge resolved all doubts against free expression to impose a highly unusual prior restraint. The liberal judicial “abortion distortion” lives on.