October 27, 2017
It was only a matter of time. In 2012, the Iowa Legislature passed and Gov. Terry Branstad signed Iowa Code §717A.3A. This legislation, titled Agricultural Production Facility Fraud, has been called Iowa’s “ag-gag” law. It’s a law specifically protecting animal production facilities from unauthorized intrusion.
But since the law’s passage, opponents have vowed to challenge its constitutionality on First Amendment grounds. That challenge was brought on Oct. 10, with a lawsuit filed in U.S. District Court for the Southern District of Iowa against the governor and attorney general of Iowa.
The law is simple. Iowa Code § 717A.3A prohibits persons from obtaining access to animal production facilities under false pretenses. It also prohibits making false statements to get a job with an animal production facility with the intent to commit unauthorized acts on that premises. In other words, the law prohibits trespassing and lying.
Groups bringing the lawsuit, however, argue that this law is a subterfuge for squelching constitutionally protected speech, particularly speech related to undercover investigations at animal farms. The groups — which include Animal Legal Defense Fund, Iowa Citizens for Community Improvement, Bailing Out Benji and People for the Ethical Treatment of Animals — allege in their petition that “the legislative purpose was to punish animal rights groups and curtail a form of political speech of great public concern.”
They also argue that the statute ensures that “no recordings or images are captured by individuals who may portray the agricultural industry in a negative light,” though the statute does not mention recordings, images or videos.
Lawsuit raises First Amendment questions
The lawsuit does raise important questions. At what point does a private landowner’s right to control and enjoy his property bend to a third party’s desire to investigate and expose activities the third party believes to be distasteful or even illegal?
At least two federal courts have struck down laws in other states designed to protect the privacy and property rights of agricultural production facilities.
In 2015, an Idaho federal court declared unconstitutional an Idaho law prohibiting, among other things, entering non-public agricultural facilities to make audio or video recordings of the facilities’ operations and knowingly obtaining employment at an agricultural production facility by “force, threat, or misrepresentation with the intent to cause economic or other injury to the facility’s operations.”
The Idaho court ruled that the law violated the First Amendment of the U.S. Constitution because it sought to suppress speech that was critical of agricultural practices. The court also found that the lies and trespass prohibited by the law did not cause “legally cognizable harm” to the agricultural production facilities. As such, the court held that the speech related to the trespass could not be suppressed. The Idaho court’s judgment is on appeal to the U.S. Court of Appeals for the 9th Circuit. A decision from that court is expected soon.
Laws to protect facilities from unauthorized intrusion
Last July, a federal court in Utah struck down a law designed to protect animal production facilities from unauthorized intrusion. The Utah law prohibited obtaining access to an animal production facility under false premises and making unauthorized audio or video recordings of these facilities. The federal court ruled that the law violated the First Amendment because the false statements prohibited by the law did not cause harm to the animal production facilities. As such, the court ruled that these statements were protected by the First Amendment.
The court specifically found that these false statements did not cause “trespass-type harm” of interfering with the ownership or possession of property. Thus, the court reasoned that the lies were protected by the First Amendment. The court ruled that the government’s interest to protect these facilities was not sufficiently compelling to justify its intrusion on freedom of speech. The state of Utah did not appeal the district court’s ruling. As such, the 10th Circuit Court of Appeals will not rule on this case.
In September, the 10th Circuit decided in another case that a Wyoming “data trespass law” violated the First Amendment. The law established enhanced penalties for trespassing onto private land to collect research data, such as photographs, soil or water samples. The court noted that while trespassing does not enjoy First Amendment protection, the law targeted the “creation” of speech by imposing heightened penalties on those who collected natural resource-related data.
Iowa law strictly prohibits trespassing, lying
These cases do not control how the Iowa court will rule. They do, however, suggest the contours of the arguments that will be made by both sides. The Iowa statute, unlike the Utah and Idaho statutes, does not prohibit the creation of audio or video recordings. It strictly prohibits trespassing and lying. In the Idaho and Utah cases, however, the courts found that the lying prohibited by those states’ respective statutes was protected by the First Amendment. They based this conclusion on a finding that the prohibited false statements did not cause “legally cognizable harm” or harm recognized by the law.
The Iowa statute prohibits making false statements to get a job with the intent to commit an unauthorized act on that premises knowing that the act is not authorized. It also prohibits obtaining access to property via false pretenses. In other words, the false statements prohibited by the Iowa statute secure consent by the owner to what otherwise would be a trespass. In such a case, it would seem that that the owner suffers “trespass-type harm” or interference with his right to control his privacy and prevent unauthorized intrusion onto his property. If this is the case, these lies are not constitutionally protected speech.
It will be up to the Iowa federal court to decide these questions. From there, the case could go to the 8th Circuit Court of Appeals.
Tidgren is staff attorney and assistant director for the Center for Ag Law and Taxation at Iowa State University. Contact her at [email protected].
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