On several occasions, most recently November 13, 2018, we blogged about the differing fates of so-called “ag-gag” laws, statutes designed to prevent animal rights activists from using subterfuges to gain access to farms and to document instances of animal abuse.
Iowa adopted its version of the law in 2012, following several undercover investigations that seriously embarrassed some Iowa farmers. The statute made it a criminal offense to obtain access to an agricultural production facility by false pretenses or to make a knowingly false statement in an employment application. The statute effectively criminalizes undercover investigations of farm practices in Iowa.
Several animal rights activists sued claiming that the statute violates the First Amendment. On January 9, 2019, the District Court agreed. Animal Legal Defense Fund v. Reynolds, 2019 WL 140069 (S.D. Iowa 2019). First, it held that the speech in question is protected by the First Amendment. Even a false statement is entitled to protection if it neither causes legally cognizable harm to the victim nor provides material gain to the speaker.
In ruling on the defendants’ motion to dismiss, the Court held that neither condition was satisfied. The nominal damage that a property owner sustains from an unconsented entry is not a legally cognizable harm. The Court acknowledged that the Ninth Circuit had upheld an Idaho statute that prohibited obtaining employment through the use of false pretenses. That statute, however, limited its application to persons acting with the specific intent to cause economic or other injury. Iowa’s intent requirement was far broader.
After the Supreme Court’s fractured decision in United States v. Alvarez, 567 U.S. 709 (2012), it is unclear whether strict scrutiny or intermediate scrutiny apply to statutes restricting the communication of false information. The Reynolds Court held that it need not decide that issue because the statute could not survive intermediate scrutiny.
The Court assumed that the State’s interests were protecting private property and biosecurity, though there was clear evidence that suppressing speech was also a motivating factor. The Court held that these interests, even if the real purpose of the statute, were too insubstantial and speculative to support the restrictions on speech. Alternatively, there were substantially narrower ways to protect those interests – the State’s general trespass law and an existing criminal statute prohibiting the possession or transportation of pathogens with intent to threaten the health of an animal or livestock.
We expect an appeal.