Federal District Court Finds Iowa’s Agricultural Trespass Law Unconstitutional

Iowa Code chapter 717A, sometimes referred to as Iowa’s “ag-gag” law, is once again the subject of federal litigation. On March 14, 2022, a federal judge from the Southern District of Iowa found the 2019 version of the law unconstitutional. Iowa Code § 717A.3B provides criminal penalties for those who, intending to harm an agricultural production facility, use deception to gain access to or employment with that facility. The judge held that the statute violated the First Amendment. Accordingly, she granted the plaintiffs’ motion for summary judgment.

The case is Animal Legal Defense Fund v. Reynolds, 91 F.Supp.3d 397 (S.D. Iowa 2022).

Background

In 2012, the Iowa Legislature passed the “Agricultural Production Facility Fraud” law. Iowa Code § 717A.3A. The law provided criminal penalties for anyone who used false pretenses to gain access to an agricultural facility (Access Provision) or made false statements to obtain employment at such a facility (Employment Provision). Several advocacy organizations, intending to carry out undercover investigations at agricultural production facilities, challenged the law claiming it violated the First Amendment.

A federal district court judge granted the plaintiffs’ request for a permanent injunction finding that both provisions violated the First Amendment. Animal Legal Defense Fund v. Reynolds, 353 F. Supp.3d 812 (S.D. Iowa 2019). On appeal, the Eighth Circuit affirmed that the Employment Provision was too broad to satisfy the First Amendment. Animal Legal Defense Fund v. Reynolds, 8 F.4th 781 (8th Cir. 2021). However, the three-judge panel reversed the district court decision and upheld the constitutionality of the Access Provision.

In 2019, after the district court enjoined the 2012 law, but before the Eighth Circuit ruling, the Iowa Legislature passed the “Agricultural Production Facility Trespass” law, which states:  

1. A person commits agricultural production facility trespass if the person does any of the following:

a. Uses deception . . . on a matter that would reasonably result in a denial of access to an agricultural production facility that is not open to the public, and, through such deception, gains access to the agricultural production facility, with the intent to cause physical or economic harm or other injury to the agricultural production facility's operations, agricultural animals, crop, owner, personnel, equipment, building, premises, business interest, or customer[; or]

b. Uses deception . . . on a matter that would reasonably result in a denial of an opportunity to be employed at an agricultural production facility that is not open to the public, and, through such deception, is so employed, with the intent to cause physical or economic harm or other injury to the agricultural production facility's operations, agricultural animals, crop, owner, personnel, equipment, building, premises, business interest, or customer.

Iowa Code § 717A.3B. The same plaintiffs then brought the current lawsuit against the State of Iowa, alleging that section 717.3B was unconstitutional. They claimed the law has a “chilling effect” on their undercover investigations because they necessarily need to use deception to misrepresent their identities. Both parties moved for summary judgment.

Viewpoint Based Regulation under the First Amendment

The First Amendment, made applicable to the States through the Fourteenth Amendment, prohibits the enactment of laws restricting speech based on its content or viewpoint. Viewpoint discrimination arises “[w]hen the government targets not subject matter, but particular views taken by speakers on a subject.” Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995).

The State argued that the statute properly targeted deceptive conduct which caused harm. Therefore, it claimed that the law did not discriminate based on a particular viewpoint. The district court disagreed finding that the statute imposed liability based on the “intent” of the trespasser by only punishing trespassers who intended to cause harm to an agricultural facility. Unlike the Access Provision in section 717A.3A, the district court found that the statute did not seek to protect against the legally cognizable harm of trespass, but rather the subsequent harm resulting from the undercover investigations. Therefore, the court ruled that the statute was subject to strict scrutiny review.

Strict Scrutiny Review

To pass strict scrutiny, the government must prove that the law is narrowly tailored to accomplish a compelling government interest. The State claimed that the statute protects private property rights, proprietary information, and biosecurity. However, the court did not find that the State adequately explained how concerns over property rights and biosecurity only apply to deceptive trespassers with the specific intent to harm as opposed to deceptive trespassers without this intent.

The district court found that even if protecting propriety information was a compelling government interest, the statute was not narrowly tailored. The plaintiffs intend to conduct investigations focused on issues of public concern such as animal welfare and food safety. While some of the investigations may violate other laws like trespass, the district court concluded that “[i]t is the proper province of the legislature to determine whether specific facilities—such as agricultural facilities, nuclear power plants, military bases, or other sensitive buildings—are entitled to special legal protections. However, the First Amendment does not allow those protections to be based on a violator’s viewpoint.”

Additional Information

On August 9, 2021, the Eighth Circuit Court of Appeals revived a challenge to an Arkansas law that creates a civil cause of action against a person who knowingly gains access to a nonpublic area of a commercial property” to engage in “an act that exceeds the person’s authority.” Ark. Code Ann. § 16-118-113. The Eighth Circuit found that the complaint alleged sufficient facts to establish a plausible claim of injury in fact and jurisdiction. Read more about this decision here.

On August 19, 2021, the Tenth Circuit Court of Appeals affirmed that three subsections of the Kansas “Farm Animal and Field Crop and Research Facilities Protection Act” did not pass strict scrutiny and were, therefore, unconstitutional. The statute provided criminal sanctions for using fraud or deception to obtain consent to engage in various activities at an animal facility with the intent to damage the facility.