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A federal judge’s ruling that Idaho’s law banning secret filming of animal abuse at agricultural facilities is unconstitutional comes, coincidentally, at the same time Planned Parenthood is under fire for the secret filming of some of its leaders discussing the sale of body parts from aborted fetuses. Those regarded as generally “liberal” might be celebrating the former while decrying the latter, and vice versa for those generally regarded as “conservative.”

While it’s definitely embarrassing to be caught unaware on video saying or doing something many people would regard as inhumane or barbaric, some pretty bad things have been exposed by undercover whistleblowers, and without them, those things would have gone on for much longer. And regardless of how you feel about people secretly recording activities at Idaho dairies or Planned Parenthood functions, you have to agree with the basic premise behind Judge Lynn Winmill’s ruling — whistleblowers deserve protection.

Idaho’s law, labeled as the “ag gag law” by critics, was presented as needed to keep trespassers out of dairies. But trespassing is already against the law in Idaho.

An argument was also made that an animal-rights activists shouldn’t be allowed to misrepresent who they are for the purposes of gaining employment at a dairy so they can secretly record video. The problem with addressing that legislatively is how do you define an “activist” from someone who isn’t a member of an “animal rights group” but sees animal abuse while on the job and decides to record it? The legal term “misrepresentation” leaves too much room for interpretation, and laws should be as specific as possible.

There was a legitimate case to be made for the preservation of trade secrets, another selling point of the bill. Someone shouldn’t be allowed to secretly document how one agricultural facility — or any other kind of business, for that matter — does what it does and then give that information to a competitor.

But this concern could have been addressed with much more narrow, focused legislation — a point made by conservative Republican Sen. Curt McKenzie of Nampa, who voted against the bill. And any employer can easily deal with this issue by requiring his employees to sign a legally binding confidentiality agreement, and if the employee violates that by revealing legal, ethical business practices, that employee can be sued.

Winmill noted in his ruling that the law restricts recordings based on the nature of the content — someone who misrepresents herself to make a video praising a dairy faces no penalty, but someone who does the same to make a critical video faces prosecution. Content-based restrictions aren’t going to fly with judges, and they shouldn’t.

If lawmakers are afraid Idaho property rights aren’t adequately protected, they should update those laws accordingly. But the “ag gag” law came across as a knee-jerk, defensive reaction by an industry that appeared as though it had something to hide. Winmill exposed it for what it was — bad legislation.

— Phil Bridges

Our editorial board: Our editorials are based on the majority opinions of our editorial board. Not all opinions are unanimous. Members of the board are Publisher Matt Davison, Opinion Editor Phil Bridges and community members Gretchen Quarve, Rick Hogaboam, Dee Sizeland and Matt Andrew. Editor Scott McIntosh is a nonvoting member.

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