An Eighth Circuit opinion filed on Tuesday in one “ag gag” lawsuit brought back part of an Iowa law which was designed to criminalize undercover investigations of animal cruelty on farms. The court ruled in favor of the provision to prohibit allowing undercover investigators to use false pretenses to access an agricultural company.
The Iowa bill, which was passed in 2012, determined that a person who “obtains access to an agricultural production facility by false pretenses” or “makes a false statement or representation as part of an application or agreement to be employed at an agricultural production facility,” can be charged with a misdemeanor. Previously, the Southern District of Iowa determined that the law violated the First Amendment, ruling in favor of the plaintiff animal and food advocacy organizations and against Iowa Governor Kimberly Reynolds, the Iowa Attorney General and the Montgomery County Attorney.
In the present opinion, the court agreed with the defendants that allowing a person access to the facility under false pretense is a breach of the First Amendment and constitutes trespass onto private property, and determined that that provision of the law is consistent with the First Amendment.
In addressing the provision regarding false statements on an application or employment agreement, the appellate court agreed with the plaintiffs that this is unconstitutional, noting that it “sweeps more broadly” and is not sufficiently limited. “Given the breadth of the Employment Provision, it proscribes speech that is protected by the First Amendment and does not satisfy strict scrutiny,” the opinion said.
Judge Grasz filed a separate concurring opinion noting that the case “tests the outer boundaries of protection of speech under the First Amendment” and that the U.S. “was founded on the concept of objective truth.” He said that the Iowa law creates a legal dilemma over property rights and protection of speech, and that he was hesitant to agree with the ruling on the access provision.
“I join the court’s opinion in full because I believe it is consistent with current law, as best we can determine it from limited and sometimes hazy precedent … the court’s opinion today represents the first time any circuit court has upheld such a provision. At a time in history when a cloud of censorship appears to be descending, along with palpable public fear of being ‘cancelled’ for holding ‘incorrect’ views, it concerns me to see a new category of speech which the government can punish through criminal prosecution,” Grasz said, noting that the Supreme Court will need to address the laws.
Judge Gruender concurred in part, but disagreed with the analysis and determination that the employment provision of the law violates the First Amendment, citing precedent from a separate case. Gruender argued that the court should rule with the plaintiffs on both provisions.
The plaintiffs are represented by ACLU of Iowa Foundation, Public Justice, University of Denver Sturm College of Law, Animal Legal Defense Fund, Center for Food Safety, and the Law Office of Matthew Strugar. The defendants are represented by the Iowa Department of Justice.