Eighth Circuit Upholds Part of Iowa “Ag Gag” Law

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

In light of animal activist infiltration of farms and other agricultural operations, the Iowa legislature passed a law in 2012 that made it a crime (a misdemeanor) to commit “agricultural production facility fraud.”  That crime could be committed in two ways:  (1) by obtaining access to an agricultural production facility by false pretenses (the Access Provision); or (2) by making a false statement as part of an employment application to an agricultural production facility if the person knows the statement is false and makes it with an intent to commit an act not authorized by the owner (the Employment Provision).  Iowa Code § 717A.3A(1)(a)-(b).

This measure was characterized as an “ag gag” law by its detractors on the ground that it allegedly penalizes free speech on animal abuse issues.  But it  was seen by its supporters as an appropriate response to the animal rights activist tactic of either trespassing on farmland or obtaining employment at a farm with false statements and then secretly videotaping or otherwise exposing what the advocates claim is inhumane treatment of farm animals.

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

The Access Provision did not violate the First Amendment because it proscribes using false statements to obtain access to private property.  The court examined the leading Supreme Court case on whether the First Amendment protects false statements — the so-called “stolen valor” case of United States v. Alvarez, 567 U.S. 709 (2012) — but found the plurality opinion in that case to be inconclusive.   Nonetheless, the Eighth Circuit concluded that, in light of Alvarez, “intentionally false speech undertaken to accomplish a legally cognizable harm may be proscribed without violating the First Amendment.”  Slip op. at 7.  In this regard, the court of appeals specifically disagreed with the district court’s reasoning that trespassing on a farmer’s land was not a legally cognizable harm because the farmer would only be able to recover nominal damages:

Even without physical damage to property arising from a trespass, these damages may compensate a property owner for a diminution of privacy and a violation of the right to exclude — legally cognizable harms.  . . . “The right to exclude is one of the most treasured rights of property ownership.” . . . We therefore conclude that the Access Provision’s prohibition on assuming false pretenses to obtain access to an agricultural production facility is consistent with the First Amendment.

Id. (citation omitted).

However, the court found the Employment Provision to be unconstitutional.  The court noted that, while a narrowly tailored statute that prohibits making false statements to get a job probably would pass constitutional muster, the Employment Provision was broader because it penalized the making of the false statement whether or not it influenced the offer of employment.  Id. at 8.  The Employment Provision therefore “proscribes speech that is protected by the First Amendment and does not satisfy strict scrutiny.”  Id. at 9.

Two judges wrote opinions separate from the majority authored by Judge Colloton.  Judge Grasz joined in the majority opinion but did so “hesitantly as to the Access Provision.  The court’s opinion today represents the first time any circuit court has upheld such a provision.”  Id. at 11.  Judge Gruender concurred in part and dissented in part.  He concluded that neither the Access Provision nor the Employment Provision violates the First Amendment:

In sum, the Alvarez plurality’s reasoning implies that both the Access Provision and the Employment Provision are constitutional.  Consequently, although our jurisprudence leaves open two ways of resolving the Marks question in this case, both ways converge on the same result:  we must uphold both provisions.

Id. at 21.

This case is a significant victory for animal businesses that have been subjected to property invasions by animal rights activists.  At least in Iowa, lying to get access to a farmer’s property in order to expose purported animal abuse is a crime.  Moreover, even though the Employment Provision was invalidated, the Eighth Circuit indicated that the state legislature could fix that problem by narrowing the law to “proscribe only false statements that are material to a hiring decision.”  Id. at 9.  Whether there are further steps in this litigation at the Eighth Circuit or Supreme Court levels, the decision in this case will reverberate throughout the animal rights community.