Animal activists recently took their first shot at the innovative Arkansas law to secure animal agriculture and pretty wildly missed the target. Judge “Jay” Moody dismissed in its entirety the challenge to the new law.

Moody handed down his decision for the U.S. District Court in mid-February just as the country’s pandemic defenses were going up and when the pandemic was drowning out news about everything else, even the in-basket at the appellate court in St. Louis.

Moody’s  U.S. District Court for the Eastern District of Arkansas ruling was appealed on March 6  to the U. S  Court of Appeals for the Eighth Circuit in St. Louis. It is the third federal appellate court to consider issues involved. The appeal is from the Animal League Defense Fund (AFDF), Animal Equality, the Center for Biological Diversity and the Food Chain Workers Alliance.

Beginning about 2010, animal agriculture interests began approaching state lawmakers about how to make their properties and animals legally more secure from outsiders, especially from those with increasingly small video recorders that were being used by underground animal welfare investigators.

What came to be known as “ag-gag” bills became law in a handful of states and the Humane Society of the United States (HSUS) said these measures could not stand even if adopted because state criminal law was being used by the states to prevent or control speech.

For most of the past decade, the legal divisions of the various animal rights groups have followed state “ag-gag” laws with lawsuits in federal courts to knock them down over constitutional challenges. And the activists have usually won.

However, several district court judges and a couple of appellate courts have written on the subject. And state lawmakers are paying attention. The Arkansas Legislature in 2017 opted to dro the whole idea of using state criminal law as a hammer.

The new law — Ark. Code Ann. §16-118-113 — simply makes unauthorized access to property another “cause of action” for civil litigation, which some judge will have to someday sort out when there is a specific dispute.

The lawsuit that was tossed by the District Court named state Rep. DeAnn Vaught, her family’s farm, and its chicken processor as defendants. Her Prayer Creek Farms is near Horatio, AR, and Peco Foods Inc.’s headquarters is in Tuscaloosa. The animal activists who sought to challenge a state law for a future civil lawsuit wanted the federal court to challenge the law now because it has a “wish to investigate” them and feared to do so now without their permission.

“The sole purpose of their investigations would be to obtain information that they would release to the public, use in their advocacy, and allow other advocacy groups to use to demonstrate the harms industrial agriculture generates,” Moody observed.  He could not follow their logic and the law at the same time.

He tossed the lawsuit, largely on the grounds that no present case or controversy exists.

“To show an injury-in-fact for this type of pre-enforcement challenge, a plaintiff “must present more than allegations of a subjective chill. There must be a claim of specific present objective harm or a threat of specific future harm,“ he said in the ruling.

Appellant briefs, including amicus briefs from parties who want to be part of the circuit court action, are being slung at the St. Louis court as the activists build their case for a second shot.   Especially as the courts get back to whatever normal operations were before the pandemic, it is not possible yet to even guess when the Arkansas case will be heard.