AAN is often invited to join amicus (also known as “friend of the court”) briefs which inform a court about how the outcome of a particular case might affect the real world. We receive so many invitations, in fact, that we generally try to participate only when a case reaches a certain level of the court system where it might have a widespread impact (after all this is a national journalism organization). That usually means United States Supreme Court, United States Court of Appeals or a major State Supreme Court. With every “rule”, of course, there is an exception. For instance, if a case is being appealed from a lower court decision that is particularly egregious, if a case involves an issue that is one of AAN’s core interests, if the issue is one that is already or on the cusp of trending nationally or if the case directly involves an AAN member. We recently joined two cases which exemplify the exception more than the rule (though one was admittedly at the State Supreme Court level).

The first case is a challenge to the State of Idaho’s “Ag-Gag” law. Though the case is only at a state trial court level, these laws are becoming a distributing trend around the country. Idaho passed this law in February, becoming the 7th state with such a law (and the first to pass an Ag-Gag law since 2012. The law provides a criminal penalty of up to one year in jail and $5,000 in fines for anyone who knowingly:

• Is not employed by an agricultural production facility and enters an agricultural production facility by force, threat, misrepresentation or trespass;

• Obtains records of an agricultural production facility by force, threat, misrepresentation or trespass;

• Obtains employment with an agricultural production facility by force, threat, or misrepresentation with the intent to cause economic or other injury to the facility’s operations, livestock, crops, owners, personnel, equipment, buildings, premises, business interests or customers;

• Enters an agricultural production facility that is not open to the public and, without the facility owner’s express consent or pursuant to judicial process or statutory authorization, makes audio or video recordings of the conduct of an agricultural production facility’s operations; or

• Intentionally causes physical damage or injury to the agricultural production facility’s operations, livestock, crops, personnel, equipment, buildings or premises.

It was almost immediately challenged by a coalition of animal rights and civil liberties groups in ALDF v. Otter. AAN joined 15 other media companies and organizations on a brief which argues that the Idaho law infringes on the First Amendment rights of those who would want to inform the public about important matters such as food safety. Idaho already has laws dealing with trespass and fraud, this law makes certain newsgathering acts more illegal with the sole intention to stop animal activists and journalists from exposing illegal activities. The brief traces the watchdog role of the press in protecting the public’s interest in a safe food supply, all the way back to Upton Sinclair’s book The Jungle. That book, of course, led to various reforms in the meatpacking industry. The brief also reviews several newspaper stories along the same lines, including some which won major awards for exposing flaws in the government’s own inspection systems, thereby serving the public interest.

But the Idaho law only serves to muzzle watchdogs when it should be helping them. The state and federal governments already prohibit certain acts of animal abuse, including many which also threaten food safety. These “Ag-gag” laws actually protect the bad actors from having their illegal activities exposed. Because trespass and fraud laws already protect the farm owners, ranch owners and other landowners are protected through existing laws. Meanwhile, this new Ag-Gag law just adds on an extra penalty for taking pictures or video. The brief gives examples of seemingly innocuous – or even outright authorized – acts that might be criminalized under this law:

• 
  Taking pictures of crops being sprayed by pesticides, empty fields being plowed in preparation for planting, an old barn being repaired, and perhaps even a home gardener planting tomatoes in his yard,

• A reporter might not be able to record an interview with an employee, perhaps even a manager, of a facility because the manager gave consent, but the owner did not or for a news crew to film the owner spreading seeds in an open field while standing on the edge of the land, even if the owner gave implied consent by willingly answering questions after knowing he was being filmed.

The other case is Scholz v. Herald. This case is currently before the Massachusetts Supreme Court, which is exploring what is commonly (though not entirely accurately) referred to as the “fact/opinion distinction” of defamation law. It arises out of a defamation lawsuit filed by a former member of the band “Boston”, Tom Scholz. He alleges that the Boston Herald defamed him in a series of articles that incorrectly blame him for the suicide of former bandmate Brad Delp (he is also suing Delp’s wife).

A lower court judge ruled that the statements in question were not assertions of fact, as required in defamation lawsuit. The judge decided that it was ultimately impossible to determine what caused Delp to commit suicide, so basically no assertions regarding his death could be factual in nature. That’s really the issue before the Massachusetts Supreme Court: were these statements about Delp’s suicide assertions of fact? Could they ever be assertions of fact?

Our brief argues that the statements published by the defendants, suggesting that the plaintiff was responsible for his former colleague’s suicide, were matters of opinion and not actionable assertions of fact for defamation purposes. The distinction between fact and opinion can be difficult to apply. But in the end, libel claims cannot prevail against expressions of opinion. Issues of public controversy can rarely be reduced to black-and-white statements of good and bad, right and wrong, true and false. It’s clear that most courts still don’t impose liability for opinion statements and instead: (1) a statement on matters of public concern must be provable as fault before there can be liability and (2) a statement is not defamatory if it cannot reasonably be interpreted as stating actual facts. If a statement can be provable as false, it can still be protected opinion if a reader cannot interpret it as stating “actual facts”.

Included in “statements that cannot ‘reasonably be interpreted as stating actual facts’” are opinions based disclosed, non-defamatory facts. Furthermore, a plaintiff must clearly bear the burden of proving falsity. And to meet that burden, a plaintiff must prove there is no possibility, however slight, that the statement could be true. Here Scholz cannot prove any possibility, however slight, that Delp may have committed suicide because of tension between the bandmates. As the lower court held, Delp’s mental state was truly unknowable.

Finally, the brief explains that “offering analysis and conjecture is a core function of journalism that must be preserved to ensure a robust public discourse”. Thus, journalists cannot do their jobs well if they have to fear that every last conjecture could be the basis of a journalism claim. The very job of a journalist is to take facts and form conclusions, which are sometimes conjecture. If not allowed to do this, they would be limited to dry, boring writing. As the brief states near the end: “Journalists’ core duties extend beyond a recitation of facts. They offer commentary and debate. They pose questions that may not have answers. When the media ask a question that implies an answer, and when that answer is plausible ‘within the wide ranges of possibilities, [then that] is precisely why we need and must permit a free press to ask the question.”

For more information about these cases or any of AAN’s past or future amicus efforts, please contact AAN attorney Kevin M. Goldberg at 703-812-0462 or goldberg[at]fhhlaw.com.