UPDATES & ANALYSIS

9.19

Federal appeals court to hear arguments Sept. 20 on Iowa law barring undercover access to livestock facilities

by Rox Laird | September 19, 2023

The U.S. Court of Appeals for the Eighth Circuit will hear oral arguments in St. Louis Sept. 20 in two appeals brought by the State of Iowa defending statutes that make it illegal to trespass or to lie on a job application to gain entry with the intent of using cameras or electronic surveillance to publicly expose animal cruelty.

These will be the second and third appeals within three years that the Eighth Circuit has heard on similar legislation following trial court decisions in the Southern District of Iowa, enactment of a revised version of the original statute, and enactment of a third statute protecting livestock facilities from trespassers using cameras or electronic surveillance devices.

Iowa’s first statute – dubbed the “ag-gag” law by critics – was originally enacted in 2012. The Legislature subsequently passed a second version of that statute to address constitutional concerns, and a third statute on livestock facility trespassing was enacted in 2021. These statutes came in response to undercover investigations at livestock facilities with the intent of publicly revealing videos and reports of alleged animal abuse.

The 2012 and 2019 statutes prohibit the act of obtaining access to or employment at an agricultural production facility under false pretenses with the intent of causing “physical or economic harm or other injury to the agricultural production facility’s operations, agricultural animals, crop, owner, personnel, equipment, building, premises, business interest, or customer.” The 2021 statute is not specific to agricultural production facilities; instead, it provides for increased criminal penalties when a person commits a trespass as defined under Iowa criminal law and then “places or uses a camera or electronic surveillance device that transmits or records images or data while the device is on the trespassed property.”

Lawsuits challenging the constitutionality of all three statutes were brought by the Animal Legal Defense Fund, Iowa Citizens for Community Improvement, Bailing out Benji, People for the Ethical Treatment of Animals Inc., and Center for Food Safety. The suits name as defendants Gov. Kim Reynolds, the Iowa Attorney General, and four county attorneys.

In a 2019 ruling, the U.S. District Court for the Southern District of Iowa held that the 2012 statute violated the First Amendment and was unconstitutional. In 2021, the Eighth Circuit held that one provision within the 2012 statute was unconstitutional and another provision was constitutional. Proceedings relating to the 2012 statute remain pending before the district court.

Then, in a 2022 ruling, the U.S. District Court for the Southern District of Iowa held that the 2021 trespassing statute violated the First Amendment as well. In that decision, the trial court held that the statute making it illegal to use a camera or electronic recording device while in the act of trespassing violates the First Amendment because the statute criminalizes an activity protected by the First Amendment.

Both district court rulings are on appeal to the Eighth Circuit, which will hear oral arguments Sept. 20 in the cases.

A key issue before the appellate court is whether a provision of the 2019 statute that makes it a crime for job applicants to lie when applying for a job in a livestock production facility violates the First Amendment.

The district court ruled that provision is an unconstitutional viewpoint-based speech restriction because it does not prohibit all “deceptive trespassers.” Those who intend to harm the agricultural facility can be punished whereas those intending no harm or who intend to “laud” a facility are not punished, the court said.

In a brief filed with the Court of Appeals, the State argues that “using deception to gain access to or obtain employment with an agricultural production facility while harboring an intent to harm that facility” is not protected by the First Amendment.

The U.S. Supreme Court has recognized that false speech that results in a “legally cognizable harm or bestows a material gain” falls outside the protections of the First Amendment, the State argues, and that even if the appeals court determines the statute is subject to strict scrutiny, the strictest test for assessing a law’s constitutionality, Iowa’s statute passes the test because it is narrowly tailored to serve a compelling governmental interest.

The plaintiffs argue the district court was correct in holding that the statute discriminates based on viewpoint because it criminalizes deceptive acts with the intent of harming the livestock facility but not those with no intent to harm.

“The latter scenario could include, for example, a journalist who plans to write a story objectively comparing the practices of various agricultural facilities with no intention or expectation of helping or harming any facility,” the plaintiffs say in a brief filed with the appeals court. “Or a food writer who tours facilities to research an upcoming book about the food system who might enter an agricultural facility with similarly neutral intent but declines to reveal her affiliation for fear of special treatment.”

The arguments will be heard by Eighth Circuit appellate Judges Steven Colloton of Des Moines, Steven Grasz of Omaha, and Jonathan Kobes of Sioux Falls. In the appeal concerning the 2019 statute, the brief filed by the State can be found here, and the brief filed by the plaintiffs challenging the law can be found here. In the appeal concerning the 2021 statute, the brief filed by the State can be found here, and the brief filed by the plaintiffs challenging the law can be found here.

 

 

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