Iowa has a new ag production facility trespass law. The new law immediately went into effect March 14, when the legislation was signed by Iowa Gov. Kim Reynolds. It was passed by the Legislature on March 12, shortly after a federal district court declared unconstitutional the Iowa Agricultural Production Facility Fraud statute enacted in 2012.

These so-called “ag-gag” laws are designed to protect agricultural producers from unauthorized and arguably dangerous intrusion. Opponents contend that these laws violate the First Amendment by preventing whistleblowers from conducting undercover investigations at animal production facilities. Ultimately, the courts will decide the merits of each position. But final answers will not come soon. The U.S. Supreme Court may ultimately have the final word.

The new Iowa law, Senate File 519, provides that people commit “agricultural production facility trespass” if they use deception to (1) gain access to or (2) obtain employment with an agricultural production facility “with the intent to cause physical or economic harm or other injury.” 

The new crime is punishable as a serious misdemeanor for the first offense and an aggravated misdemeanor for subsequent offenses. Those who conspire to commit the crime can also be prosecuted.

Designed for more protection

The language in the new law is more specific than that of the 2012 law, Iowa Code 717A.3A. The 2012 law prohibited people from obtaining access to animal production facilities under “false pretenses.” It also prohibited making false statements to get a job with an animal production facility with the “intent to commit unauthorized acts” on the premises. A first conviction under 717A.3A was a serious misdemeanor, and a second or subsequent conviction was an aggravated misdemeanor.

On Oct. 10, 2017, groups opposed to the 2012 law filed a challenge in U.S. District Court for the southern district of Iowa against the governor and attorney general of Iowa. The groups — the Animal Legal Defense Fund, Iowa Citizens for Community Improvement, Bailing Out Benji, and People for the Ethical Treatment of Animals — alleged in their petition that “the legislative purpose was to punish animal rights groups and curtail a form of political speech of great public concern.” 

Specifically, the plaintiffs alleged 717A.3A was facially unconstitutional as a content-based, viewpoint-based and overbroad regulation. Proponents argued the law provided constitutionally permissible protection for the security, privacy and property rights of agricultural producers.

Freedom of speech 

On Jan. 9, the U.S. District Court for the southern district of Iowa ruled in the case of Animal Legal Defense Fund v. Reynolds that the lies criminalized by the 2012 statute constituted protected speech under the First Amendment. As such, the court declared the law restricting this speech to be unconstitutional. The court later entered an order preventing the state of Iowa from enforcing the 2012 law. 

In finding the law unconstitutional, the court specifically ruled that the right to make the kinds of false statements criminalized by 717A.3A — whether they be investigative deceptions or innocuous lies — is “protected by our country’s guarantee of free speech and expression.”

Acknowledging this holding may be “disquieting,” the court stated, “One of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace.” Although not all false statements are constitutionally protected, the court ruled the ones suppressed by the 2012 law were protected because they did not cause a “legally cognizable harm” or provide “material gain” to the speaker. 

The court also ruled that although the state’s interests in passing the statute — protecting property and biosecurity — were important, they were not compelling. The court said the state produced no evidence to show the law’s restrictions were necessary to prevent the perceived harms to property and biosecurity since content-neutral trespass laws and biosecurity laws already protected ag production facilities.

Iowa ‘ag gag’ ruling not first 

The Iowa court was not the first federal court to find an “ag gag” law to be unconstitutional. In July 2017, a Utah federal court struck down a law prohibiting obtaining access to an animal production facility under false premises and making unauthorized audio or video recordings of these facilities. 

The Utah court ruled the law violated the First Amendment because the false statements prohibited by the law did not cause harm to the production facilities and the government’s interest in protecting these facilities was not sufficiently compelling to justify its intrusion on freedom of speech. Utah did not appeal the ruling.

On Jan. 4, 2018, the U.S. Court of Appeals for the 9th Circuit, affirmed in part and reversed in part a 2015 Idaho federal court’s order declaring Idaho’s so-called ag-gag statute unconstitutional. In Animal Legal Defense Fund v. Wasden, the 9th Circuit ruled Idaho’s criminalization of misrepresentations made to enter an animal production facility violated the First Amendment because it criminalized innocent behavior, was overbroad, and its purpose was to target speech and investigative journalists. 

The court also struck down the portion of the statute that banned audio or video recordings, finding that it impermissibly regulated constitutionally protected speech. 

The court did uphold the constitutionality of a section of the law that criminalizes obtaining employment by misrepresentation “with the intent to cause economic or other injury.” The 9th Circuit — unlike the Iowa court — found that lying to obtain employment was associated with a “material benefit” to the speaker. This, the circuit ruled, placed the employment-related false speech outside of First Amendment protection. The court also found the requirement that the speaker have an intent to cause actual injury prevented the criminalization of otherwise innocuous lies.

Iowa looks to Idaho

Relying in part on the 9th Circuit’s opinion, Iowa has appealed the Jan. 9 ruling declaring the 2012 law unconstitutional. The 8th Circuit will review the case and decide whether to uphold the decision. But this will take time, and the district court is not allowing the 2012 law to be enforced while the case is on appeal.

In response to these developments, the 2019 Iowa Legislature on March 12 passed Senate File 519 to provide continued protection to agricultural production facilities. Reynolds signed it March 14, and the law went into effect. The new law was closely modeled after the portion of the Idaho law the 9th Circuit found to be valid. 

The 2019 version is much more specific than the 2012 law, which criminalized:

The new law criminalizes the use of deception to gain access to or obtain employment with an agricultural production facility “with the intent to cause physical or economic harm or other injury.” 

In other words, the state of Iowa must prove a specific intent to cause actual harm or injury to obtain a conviction under the 2019 law. 

It remains to be seen how the courts may interpret the new law. We will be monitoring the 8th Circuit appeal of the 2012 law, as well as watching for a lawsuit challenging the 2019 law. There is sure to be lots of activity ahead.

Tidgren is an attorney and director of the Center for Ag Law and Taxation at ISU. Contact her at [email protected].