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Gag with Malice


Shaakirrah R. Sanders


February 2, 2023

This Article brings agriculture privacy and other commercial gagging laws into the ongoing debate on the First Amendment actual malice rule announced in New York Times v. Sullivan. Despite a resurgence in contemporary jurisprudence, Justices Clarence Thomas and Neil Gorsuch have recently questioned the wisdom and viability of Sullivan, which originally applied actual malice to state law defamation claims brought by public officials. The Court later extended the actual malice rule to public figures, to claims for infliction of emotional distress, and—as discussed in this Article—to claims for invasion of privacy and to issues of public importance or concern.

United States v. Alvarez recently identified the significance of Sullivan and the actual malice rule when announcing First Amendment protection for false speech. Alvarez notably excluded defamation from the categories of protected false speech. No federal district or circuit court that has applied Alvarez to agriculture privacy laws has considered Sullivan or the actual malice rule. Agriculture privacy laws are a type of gag law that seek to: (i) prevent the use of misrepresentations to gain access, employment, or unauthorized entry; (ii) prevent unauthorized or nonconsensual use of video, audio, and photographic cameras or recorders if there was an intent to cause harm to the enterprise; or (iii) impose a duty to submit recordings of animal or agriculture abuse. Some of the legislative histories of these laws demonstrate an intent to prevent undercover investigations into or exposés on the industry. Arkansas has applied a similar type of gag to all commercial businesses.

The Eighth, Ninth, and Tenth Circuits are currently split on the scope of Alvarez’s protection against agriculture privacy and commercial gagging laws. This Article demonstrates how Sullivan and the actual malice rule also balance the First Amendment right of privacy and press to gather and disseminate information about public matters. Part I introduces agriculture privacy and commercial gagging laws. Part II deliberates the civil rights roots and recent resurgence of Sullivan in contemporary jurisprudence. Part III contemplates how Sullivan alleviates First Amendment deficiencies that gagging courts left unaddressed, particularly with regard to the effect of gagging laws on undocumented workers and others in the marketplace of ideas about commercial food production.


Shaakirrah R. Sanders, Gag with Malice, 79 Wash. & Lee L. Rev. 1715 (2023).