We have blogged on several occasions, most recently on June 7, 2018, about the varied fate of so-called “ag-gag” laws. These laws seek to prevent, in one way or another, undercover investigations of the quality of producers’ facilities, usually involving care of animals or poultry.  On September 15, 2017, we blogged about the Tenth Circuit’s partial reversal of an order dismissing a complaint against the Wyoming version of an ag-gag statute.

The statute made it a civil and criminal offense to trespass on private property en route to public property, if the objective was to gather information about producer operations. The issue on remand was whether this statute violated the First Amendment.

On cross-motions for summary judgment, the District Court held that the statute was unconstitutional. It is clear that the First Amendment protects the gathering of information for ultimate use in speech; otherwise, it would be entirely too easy to shut down speech before it ever took place.  The statute was content-based because it only applied to collection of data about land and land use, and not to other purposes.  Thus, it was subject to strict scrutiny.

The statute failed strict scrutiny. The asserted governmental interest was in protecting the property rights of private citizens.  But it made no effort to do so for anyone not collecting data about producer operations.  The Court found this to be especially problematic given that producers deposed in the case had equal or greater problems with trespassing hunters and campers.  Moreover, the statute was not narrowly tailored to that interest.

The Court held that the State could criminalize trespass without any requirement of subsequent engagement with speech. This suggests that the State could accomplish its objective of shutting down speech about producers’ operations merely by strengthening a facially neutral trespass statute.  That in turn raises the prospect of an as-applied challenge to an amended statute.