We blogged several times – most recently, on April 24, 2019 – about Iowa’s “ag-gag” law, which makes it a criminal offense to gain employment in or access to farm or ranch operations by means of false pretenses. The primary purpose of these kinds of statutes is to prevent undercover investigation of agricultural operations that engage in animal cruelty.

The state of Iowa has filed its opening brief in its appeal from the District Court’s injunction against the original ag-gag law. As we explained in the April 24 post, the Iowa legislature has amended the statute to address some of the District Court’s concerns. But the original language remains in effect, so the state takes the position that the appeal is still live.

Subsection (a) of the statute makes it illegal to gain access to agricultural property by mean of false pretenses. The key to the District Court’s holding was that the misrepresentations in question neither caused any material harm to the owner of the agricultural property nor secured any gains for the speaker. As a result, the speech was protected by the First Amendment.

The state’s brief on appeal does not address that issue until halfway through the argument. It first argues that there is no First Amendment protection for speech that does cause such harm or such gains – a proposition that no one disputes.  It then summarizes the results of three prior challenges to state ag-gag laws.

The brief argues that a trespass based on consent obtained by misrepresentation is, in and of itself, material injury to the landowner. The District Court rejected that argument on the basis that a mere trespass, while technically tortious, warrants only nominal damages under Iowa law.  By contrast, actual damages are an element of a fraud claim; and actual damage to one’s reputation, as opposed to mere hurt feelings, is necessary to a defamation claim.

The state’s brief does not directly address this holding. It argues that the right to exclude persons from private property is one of the essential sticks in the bundle of rights associated with ownership. It argues that Iowa recognizes nominal damages for even a technical trespass.  It claims the First Amendment is at its lowest ebb when infringing on private property.  It argues that consent obtained by misrepresentation is no consent at all.

Most challenges to ag-gag laws claim First Amendment protection based on the need to conduct undercover investigations as a predicate for publication of the news. Plaintiffs in the Iowa litigation, however, claim that the prohibition on false statements to gain access itself directly implicates the First Amendment.

Plaintiffs correctly argue that the First Amendment protects even false statements of fact, provided they cause no material harm the target and/or provide no material gain to the speaker. They also correctly argue that the state’s trespass analogy ignores the absence of anything other than nominal damages. Nominal damages, by definition, do not reflect material injury.

The state’s brief also alleges that undercover agents gain a material benefit from their misrepresentations because they gain access to otherwise inaccessible property – i.e., they gain the ability to do something lawful that would otherwise be illegal. The brief is considerably stronger on this point, partly because the District Court equated material injury to the landowner with material gain to the trespasser. The brief also notes that plaintiffs themselves argued that there was no meaningful way to gain access necessary to conduct undercover investigations aside from violating the statute. That strikes us as a material gain, however one defines material.

Plaintiffs respond that material harm and material gain are two sides of the same coin – it is impossible for one to materially gain from a lie that does not cause material harm to others. Moreover, these kinds of lies serve the [public interest by making it possible to expose mistreatment of animals.

The state’s brief also asserts that subsection (b) of the statute is permissible. That section makes it illegal to obtain employment at an agricultural facility by the use of false pretenses with the specific intent to engage in conduct they know to be unauthorized. The District Court held that, on its face, this kind of specific intent did not require any material harm to the owner.

The state’s brief offers two defenses of this provision. First, it cites United States v. Alvarez, 567 U.S. 709 (2013), for the proposition, albeit in dictum, that the First Amendment does not protect the use of fraudulent representations to obtain employment. Second, it asserts that the specific intent requirement is sufficiently narrow to encompass only economic harm: the most likely reason an employer prohibits some conduct is that it believes the conduct will cause economic harm.

We are not at all convinced by the second argument. As we explained on April 24, the Ninth Circuit upheld Idaho’s similar ag-gag law by holding that economic injury did not include injury occasioned by loss of reputation. The most likely reason a farmer or rancher would prohibit undercover activity is precisely to avoid such reputational injury.

The state’s brief also argues that, even if the First Amendment does protect false representations to obtain access to agricultural properties, the proper standard of review is intermediate scrutiny and the statute passes muster. The brief concedes that a court must evaluate the content of what is said in order to determine if it violates the statute.  But it claims that the ultimate objective of the statute is to protect private property against trespassers and that objective is unrelated to the content of the speech.

Based on a concurring opinion in Alvarez, the brief also argues for intermediate scrutiny on the theory that false statements are unlikely to make valuable contributions to the marketplace of ideas. And there may be sound reasons why a government would want to restrict such claims.

Intermediate scrutiny requires a statute narrowly tailored to serve a significant government interest. The state argues that protecting private property and providing biosecurity are significant interests. It also claims that plaintiffs’ own actions demonstrate that the state’s general trespass law is insufficient to prevent access to ranches and farms by false pretenses.

Plaintiffs respond that these concerns are smokescreens to cover up the real purposes behind the ag-gag law: shutting up those would expose wrongdoing in the agricultural community. The First Amendment demands that courts focus on the legislature’s real motive for acting, not some after-the-fact justification.

In any event, there are plenty of ways to protect those interests short of threatening the free speech rights of undercover activists. The general trespass law does protect the sanctity of private property and the state serves its interest in biosecurity by banning the possession of pathogens.

We believe that the plaintiffs have substantially the better argument with respect to this version of the statute and that, if the Eighth Circuit reaches the merits, it will affirm. As suggested in our April 24 post, however, the state has a much better shot at defending the amended statute.