We blogged on March 12, 2018, about the State of Iowa’s appeal of a District Court order finding that its so-called “ag-gag” statute violated the First Amendment.  The statute made it a criminal offense to gain access to farm facilities by false pretenses or to make a knowingly false statement in an employment application.  The purpose is to make it harder for undercover investigations to uncover animal abuse.

The Iowa attorney general has filed a motion to stay the order pending appeal.  He argued that the State has a reasonable chance of prevailing on appeal.  In United States v. Alvarez, 567 U.S. 709 (2012), the Court stated, in dicta, that government could legally prohibit false statements intended to procure an offer of employment and one portion of Iowa’s ag-gag law did exactly that.

The attorney general also pointed to opinions in the 9th and 10th Circuits sustaining, in part, similar state laws.  In Animal Legal Defense Fund v. Wasden, 878 F.3d 1184 (9th Cir. 2018), the Court upheld a portion of an Idaho statute that prohibited false statements to obtain employment with the intent to cause economic or other injury.  In Western Watershed Project v. Michael, 869 F.3d 1189 (10th Cir. 2017), the Court upheld sub silentio a Wyoming statute prohibiting trespass on private property to obtain resource data.

The attorney general argued that Iowa would suffer irreparable harm if the order were not stayed.  Iowa’s constitution offers special protection to private property, in some cases more protection than the federal constitution would recognize.  The Iowa Supreme Court has held that government can prohibit speech on private property without violating the First Amendment.  The attorney general also argued that the statute was necessary to promote biosecurity.

The attorney general further claimed that the ag-gag law was necessary to deter undercover investigations.  More than ten such investigations were conducted before passage of the statute; none since.  The attorney general argued that, since the order striking down the statute, advertisements for undercover investigations have been posted.

The motion argued that plaintiffs would not sustain any irreparable harm if the injunction were stayed pending appeal.  It asserted that plaintiffs had plenty of other ways to obtain information about animal abuses, including whistleblowers who were legitimate employees.  It claimed that the loss of a preferred investigatory method is not irreparable harm and noted that plaintiffs never sought a preliminary injunction.

Finally, the attorney general argued that the public interest in protecting private property outweighed any claimed interest plaintiffs had in providing false statements to secure access to farms and ranches.

Unsurprisingly, plaintiffs disagreed.  They argued that, under Eighth Circuit law, the most important factor is likelihood of success on appeal and that movant must make a strong showing that it will prevail.  They argued that the District Court’s ruling was consistent with all other courts to address the issue.

Plaintiffs also argued that the District Court had already rejected both of the interests Iowa relied on to establish irreparable injury.  Iowa’s existing general trespass law adequately protects private property and the existing prohibition against possession of pathogens adequately protects biosecurity.  Plaintiffs also observed that the Iowa legislature was considering a new bill to address the District Court’s concerns.

Plaintiffs argued that they need not demonstrate that they would suffer irreparable harm were a stay granted, just that they would be injured.  In any event, though, they argued that the denial of First Amendment rights in and of itself is irreparable harm.  And the availability of other investigatory techniques does not mitigate the harm any more than the ability to use the internet to solicit political pressure would salvage a law that banned public demonstrations.

Finally, the plaintiffs argued that the public interest always favors injunctions against limiting free speech rights.  It quoted a number of newspapers that had published ringing endorsements of the injunction.  Surprisingly, plaintiffs did not turn the attorney general’s argument on discouraging undercover investigations around on him:  the argument clearly proves that the statute had a major chilling effect on plaintiffs’ free speech rights.

We think it unlikely that the District Court will stay the injunction pending appeal; the arguments the State raised in support of its motion are not materially different from those already rejected on summary judgment.  The State has a better chance in the Eighth Circuit, depending on what panel it draws.  Plaintiffs are not correct that every case to decide the issue agrees with them.

As the summary judgment ruling acknowledged, and as previously stated, the Ninth Circuit has upheld portions of Idaho’s ag-gag statute.  Similarly, the Tenth Circuit has upheld portions of Wyoming’s ag-gag law.

Moreover, this case may very well illustrate the concept of winning the battle but losing the war.  Several of the opinions in these cases suggest that a standard trespass law not limited to agriculture might very well pass constitutional muster.