Monday, October 06, 2014

Animus and Ag Gag Laws

Guest Blogger

Justin Marceau

This Post is part of the Symposium on Unconstitutional Animus

What are the constitutional implications when a state singles out a particular industry’s whistleblowers for criminal penalties? “Ag-gag” laws, as they are known, make criminals of the modern day Upton Sinclairs by criminalizing undercover investigations on agricultural operations.  See, e.g., .  Along with a team of terrific scholars and lawyers I am litigating a series of equal protection and first amendment challenges to these state laws.  A brief overview of the equal protection litigation follows.    

1.  Animus in Ag Gag’s Legislative History.

The enactment of the ag gag laws was preceded by considerable discussion about keeping animal rights groups out of the relevant states, calling them terrorists, and expressing a desire to limit their influence in the “court of public opinion.” 

Even in much smaller doses, and with a tone of moral disapproval rather than outright hostility, expressions of animus towards a politically unpopular group have been fatal.  See U.S. Dept. of Agriculture v. Moreno, 413 U.S. at 534 (1973) (one legislator made limited statements); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) (a few scattered legislative statements were considered); U.S. v. Windsor, 133 S. Ct. at 2675 (a single statement in House Report).  Moreover, Windsor reveals that the statute itself can be evidence of animus if it imposes a unique disability on one political group, and you don’t necessarily need a record of additional, extrinsic evidence of animus.  (in Windsor “the Supreme Court examined the dominant social meaning of the law apart from anyone’s subjective intent”).  Without going into detail here, suffice to say, I am not aware of any legislative record in a federal case that has more vivid and extensive evidence of animus.

2.  Judicial and State Reaction to the Animus Claims

As an initial matter, it is worth noting that the federal judges reviewing motions to dismiss on these issues have correctly recognized that the question of whether animus was a motivating factor for a law is a factual question.  Beyond this, however, there is considerable disagreement about what role animus should play in the litigation.

First, the state defendants have reacted dismissively to the suggestion that Windsor sheds light on the analytical framework for animus-based laws, describing it as nothing more than a decision about federalism.  Second, the state of Idaho took the position that the laws making it a crime to engage in undercover investigations in one industry but not others simply do not create a classification at all: “because these prohibitions apply to all persons or entities, the sine qua non of an equal protection claim—discriminatory classifications—does not exist.”  Somewhat related, they argue that because the law regulates primarily conduct, equal protection is not implicated.    

To their credit, both of the federal judges (Shelby-Utah; Winmill- Idaho) have substantially rejected these simplistic caricatures of equal protection.  Judge Winmill, for example, wrote, “ALDF’s allegations arguably reveal an animus toward animal-rights activists. And if ALDF’s allegations of animus prove true, the Court must skeptically scrutinize any offered justifications for section 18-7042.”  

3.  Ag Gag Animus Jurisprudence

In this section I will offer some quick reflections on two of the central arguments advanced against animus based relief in these cases.    

   a.  Ag Gag laws don’t classify or only target conduct

Almost all laws create classifications.  A law regulating the sale of filled milk warranted equal protection review seventy-five years ago, U.S. v. Carolene Products, 304 U.S. 144 (1938), and so too does a distinction between whistleblowers in the ag industry and whistleblowers in all other industries.  As Andrew Koppelman has observed, even a “facially neutral law may nonetheless violate equal protection if the disparate impact reflects a purpose to discriminate.” 

A related and more interesting argument is that the ag gag laws – by criminalizing whistleblowing actions– target conduct rather than status and thus fall outside of equal protection scrutiny.  But an assertion that a challenged statute merely prohibits conduct rather than creating a classification does not insulate the statute from meaningful review.  See Lawrence v. Texas, 539 U.S. 558, 583 (2003) (“[T]he State maintains that the law discriminates only against homosexual conduct. While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual.”); Romer v. Evans, 517 U.S. 620, 641 (1996) (Scalia, J., dissenting) (chastising the majority for extending full dress equal protection to  “laws merely disfavoring homosexual conduct.”); Koppelman, 64 Case Wes. L. Rev. 1, 8, n.41 (2014) (cataloguing examples of the same).

   b.  The view that all criminal laws are based on animus

Although the judges presiding over the ag gag litigation have denied motions to dismiss, at some points the denials are less than full-throated.   Most notably, Judge Shelby explained that ag gag laws are criminal and not civil.  In Shelby’s view, which seems to draw inspiration from Justice Scalia’s dissents in Romer and Lawrence, criminal sanctions are inherently an expression of animus towards the offender and thus apparently immunized from animus review.  The issue is whether cases like Moreno, Windsor and Cleburne, all of which are civil cases, could logically be extended to criminal statutes.  This is a thoughtful and interesting attempt to limit the role of animus, but on reflection it is misplaced for a couple of important reasons. 

First, while Lawrence arises under due process, underlying this decision striking down criminal sodomy laws across the country is a concern about animus.  As Justice O’Connor wrote in concurrence, “When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause.”  Lawrence, 539 U.S. at 580.  Criminal laws can and do trigger animus concerns (under equal protection or due process or both). 
Second, it is important for courts and scholars to distinguish between permissible and impermissible animus.  Permissible animus expresses condemnation for harmful conduct writ large, for example hostility towards the act of rape or murder, or trespass.  Impermissible animus targets a politically unpopular group whose existence and identity is independent from the conduct defined by the statute.  Stated differently, while there is an intuitive appeal to the suggestion that legislators surely act with contempt for the pedophile when they enact statutory rape laws, the fundamental difference is that this (appropriate or permissible) animus is based on the disapproved conduct of offenders, not the group’s beliefs or way of being.  It would be a serious mistake to equate permissible animus towards murderers or rapists with animosity towards hippies living together or animal rights activists and their investigations.  It's acceptable for a legislature to have animus toward someone because they commit murder or trespass, but it is not okay to have animus towards a group who might engage in conduct for a particular political reason.   The question is whether there is a politically salient, ideologically identifiable group being targeted by the statute in question.  It's not permissible for legislation to reflect animus toward someone who trespasses for a particular political reason and not toward other trespassers; or as Dale Carpenter has put it, “[t]he discovery of animus is instead an affirmative reason to invalidate an otherwise constitutional law.”

Hippies, gays, and animal rights groups are all politically unpopular groups.  They have a political identity that is often associated with certain conduct – hippies might live together in communes and animal rights groups seek to discover and disclose animal abuse.  By contrast, to suggest that those who commit a particular crime – all rapists, for example – share a protected political ideology or union because they have engaged in non-consensual sex is to conflate permissible animus towards discrete conduct and impermissible animus towards groups (and their essential activities).  Animus is impermissible when it targets a politically unpopular group, whether the resulting law targets the group’s existence or essential activities.  Romer, 517 U.S. 620, 641 (1996) (Scalia, J., dissenting) (“there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal”). Animus towards harmful conduct qua conduct when carried out by individual actors will generally be permissible animus.  But when the law – civil or criminal – targets a politically unpopular group’s conduct, the animus is impermissible.  The outcome in Moreno would not have been different if the law at issue had been criminal in nature.  And because hippies are not an immutable class, Moreno is best viewed as an equal protection violation arising out of impermissible animus with regard to the conduct of hippies.  Impermissible animus targeting the status or conduct of animal rights groups, no less than animus targeting hippies, violates equal protection.

Justin Marceau is a Professor at the University of Denver Sturm College of Law.  He can be reached at: jmarceau at

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