Eighth Circuit Upholds Part Of Iowa "Ag Gag" Law – Litigation, Mediation & Arbitration – United States – Mondaq News Alerts

11 August 2021

Duane Morris LLP

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Today, the U.S. Court of Appeals for the Eighth Circuit upheld,in part, the constitutionality of an Iowa law that makes it acriminal offense to obtain access to an agricultural facility byfalse pretenses. Animal Legal Def. Fund v. Reynolds, No.19-1364 (8th Cir. Aug. 10, 2021). The court reversed in part adistrict court ruling that the law violated the FirstAmendment.

In light of animal activist infiltration of farms and otheragricultural operations, the Iowa legislature passed a law in 2012that made it a crime (a misdemeanor) to commit "agriculturalproduction facility fraud." That crime could be committed intwo ways: (1) by obtaining access to an agricultural productionfacility by false pretenses (the Access Provision); or (2) bymaking a false statement as part of an employment application to anagricultural production facility if the person knows the statementis false and makes it with an intent to commit an act notauthorized by the owner (the Employment Provision). Iowa Code 717A.3A(1)(a)-(b).

This measure was characterized as an "ag gag" law byits detractors on the ground that it allegedly penalizes freespeech on animal abuse issues. But it was seen by its supporters asan appropriate response to the animal rights activist tactic ofeither trespassing on farmland or obtaining employment at a farmwith false statements and then secretly videotaping or otherwiseexposing what the advocates claim is inhumane treatment of farmanimals.

Plaintiffs, which included the animal rights groups Animal LegalDefense Fund (ALDF) and People for the Ethical Treatment of Animals(PETA), sued claiming that the law violated their First Amendmentrights. The district court agreed and enjoined enforcement of thelaw. A three-judge paned of the Eighth Circuit reversed as to theAccess Provision but affirmed as to the Employment Provision.

The Access Provision did not violate the First Amendment becauseit proscribes using false statements to obtain access to privateproperty. The court examined the leading Supreme Court case onwhether the First Amendment protects false statements theso-called "stolen valor" case of United States v.Alvarez, 567 U.S. 709 (2012) but found the pluralityopinion in that case to be inconclusive. Nonetheless, the EighthCircuit concluded that, in light of Alvarez,"intentionally false speech undertaken to accomplish a legallycognizable harm may be proscribed without violating the FirstAmendment." Slip op. at 7. In this regard, the court ofappeals specifically disagreed with the district court'sreasoning that trespassing on a farmer's land was not a legallycognizable harm because the farmer would only be able to recovernominal damages:

Even without physical damageto property arising from a trespass, these damages may compensate aproperty owner for a diminution of privacy and a violation of theright to exclude legally cognizable harms. . . . "Theright to exclude is one of the most treasured rights of propertyownership." . . . We therefore conclude that the AccessProvision's prohibition on assuming false pretenses to obtainaccess to an agricultural production facility is consistent withthe First Amendment.

Id. (citation omitted).

However, the court found the Employment Provision to beunconstitutional. The court noted that, while a narrowly tailoredstatute that prohibits making false statements to get a jobprobably would pass constitutional muster, the Employment Provisionwas broader because it penalized the making of the false statementwhether or not it influenced the offer of employment. Id.at 8. The Employment Provision therefore "proscribes speechthat is protected by the First Amendment and does not satisfystrict scrutiny." Id. at 9.

Two judges wrote opinions separate from the majority authored byJudge Colloton. Judge Grasz joined in the majority opinion but didso "hesitantly as to the Access Provision. The court'sopinion today represents the first time any circuit court hasupheld such a provision." Id. at 11. Judge Gruenderconcurred in part and dissented in part. He concluded that neitherthe Access Provision nor the Employment Provision violates theFirst Amendment:

In sum, the Alvarezplurality's reasoning implies that both the AccessProvision and the Employment Provision areconstitutional. Consequently, although ourjurisprudence leaves open two ways of resolving theMarks question in this case, both ways converge on thesame result: we must uphold both provisions.

Id. at 21.

This case is a significant victory for animal businesses thathave been subjected to property invasions by animal rightsactivists. At least in Iowa, lying to get access to a farmer'sproperty in order to expose purported animal abuse is a crime.Moreover, even though the Employment Provision was invalidated, theEighth Circuit indicated that the state legislature could fix thatproblem by narrowing the law to "proscribe only falsestatements that are material to a hiring decision."Id. at 9. Whether there are further steps in thislitigation at the Eighth Circuit or Supreme Court levels, thedecision in this case will reverberate throughout the animal rightscommunity.

Disclaimer: This Alert has beenprepared and published for informational purposes only and is notoffered, nor should be construed, as legal advice. For moreinformation, please see the firm's full disclaimer.

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Eighth Circuit Upholds Part Of Iowa "Ag Gag" Law - Litigation, Mediation & Arbitration - United States - Mondaq News Alerts