{"id":440,"date":"2021-08-10T15:56:17","date_gmt":"2021-08-10T19:56:17","guid":{"rendered":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/?p=440"},"modified":"2021-08-10T15:56:17","modified_gmt":"2021-08-10T19:56:17","slug":"eighth-circuit-upholds-part-of-iowa-ag-gag-law","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/2021\/08\/10\/eighth-circuit-upholds-part-of-iowa-ag-gag-law\/","title":{"rendered":"Eighth Circuit Upholds Part of Iowa “Ag Gag” Law"},"content":{"rendered":"

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.\u00a0 Animal Legal Def. Fund v. Reynolds<\/em>, No. 19-1364 (8th Cir. Aug. 10, 2021).<\/a>\u00a0 The court reversed in part a district court ruling that the law violated the First Amendment.<\/p>\n

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.”\u00a0 That crime could be committed in two ways:\u00a0 (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).\u00a0 Iowa Code \u00a7 717A.3A(1)(a)-(b).<\/p>\n

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.\u00a0 But it\u00a0 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.<\/p>\n

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.\u00a0 The district court agreed and enjoined enforcement of the law.\u00a0 A three-judge paned of the Eighth Circuit reversed as to the Access Provision but affirmed as to the Employment Provision.<\/p>\n

The Access Provision did not violate the First Amendment because it proscribes using false statements to obtain access to private property.\u00a0 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<\/em>, 567 U.S. 709 (2012) — but found the plurality opinion in that case to be inconclusive.\u00a0 \u00a0Nonetheless, the Eighth Circuit concluded that, in light of Alvarez<\/em>, “intentionally false speech undertaken to accomplish a legally cognizable harm may be proscribed without violating the First Amendment.”\u00a0 Slip op. at 7.\u00a0 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:<\/p>\n

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.\u00a0 . . . “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.<\/span><\/strong><\/p>\n

Id<\/em>. (citation omitted).<\/p>\n

However, the court found the Employment Provision to be unconstitutional.\u00a0 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.\u00a0 Id<\/em>. at 8.\u00a0 The Employment Provision therefore “proscribes speech that is protected by the First Amendment and does not satisfy strict scrutiny.”\u00a0 Id<\/em>. at 9.<\/p>\n

Two judges wrote opinions separate from the majority authored by Judge Colloton.\u00a0 Judge Grasz joined in the majority opinion but did so “hesitantly as to the Access Provision.\u00a0 The court’s opinion today represents the first time any circuit court has upheld such a provision.”\u00a0 Id<\/em>. at 11.\u00a0 Judge Gruender concurred in part and dissented in part.\u00a0 He concluded that neither the Access Provision nor the Employment Provision violates the First Amendment:<\/p>\n

In sum, the Alvarez<\/em> plurality\u2019s reasoning implies that both the Access Provision <\/span><\/strong>and the Employment Provision are constitutional.\u00a0 Consequently, although our <\/span><\/strong>jurisprudence leaves open two ways of resolving the Marks<\/em> question in this case, both ways converge on the same result:\u00a0 we must uphold both provisions.<\/span><\/strong><\/p>\n

Id<\/em>. at 21.<\/p>\n

This case is a significant victory for animal businesses that have been subjected to property invasions by animal rights activists.\u00a0 At least in Iowa, lying to get access to a farmer’s property in order to expose purported animal abuse is a crime.\u00a0 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.”\u00a0 Id<\/em>. at 9.\u00a0 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.<\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

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.\u00a0 Animal Legal Def. Fund v. Reynolds, No. 19-1364 (8th Cir. Aug. 10, 2021).\u00a0 The court reversed in part a district … <\/p>\n

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