Matthew Liebman, an attorney for the animal-rights activists, told Shelby that the prohibition on recording brings free-speech protections into play in the case. The law would require that a law officer view a disputed video to determine whether it contained content that violated the Utah law, Liebman said.
"You can't take topics and declare them off limits, and that's exactly what this statute does," he said.
But Assistant Attorney General Kyle Kaiser said the law prohibits videotaping based on whether it takes place on private property without permission and not on the contents of any video.
"If you're on private property, the First Amendment doesn't guarantee you free-speech rights," Kaiser said.
Shelby said he would take the dueling motions under advisement and rule later.
The judge didn't indicate how he would rule, but he engaged in lengthy questioning of Kaiser about whether the law was narrowly tailored to meet legitimate state interests in protecting livestock operations.
If the state's interest is in shielding those operations from safety hazards, including introduction of biological hazards, Shelby suggested that the law prohibiting lying to gain access to a property fell short of those goals.
"That's the best the state could do?" he asked Kaiser.
But he also pressed Liebman on how he might determine what the intent of the Legislature was in passing the law, given that lawmakers could have a variety of reasons for approving it.
The lawsuit was the first in the nation to challenge ag gag laws that are largely aimed at restricting the actions of animal-rights activists who seek to expose animal cruelty or unsanitary operations, according to the Animal Legal Defense Fund, which is a plaintiff in the case alongside People for the Ethical Treatment of Animals and activist Amy Meyer of Salt Lake City.
Since filing the Utah lawsuit, the groups also challenged similar laws in North Carolina and Idaho. A federal judge in Idaho struck down the law in that state, while the North Carolina lawsuit is pending.
Utah's law makes it a class A misdemeanor, with a penalty of up to a year in jail, to violate the ag gag law.