Eight Circuit Says Iowa Can Prohibit Obtaining Access to Farms through False Pretenses

On August 10, 2021, the United States Court of Appeals for the Eighth Circuit considered the constitutionality of Iowa’s 2012 “Agricultural Production Facility Fraud” law (2012 law), sometimes called an “ag-gag” law. The court reversed a 2019 district court decision and upheld the constitutionality of the portion of the law providing criminal penalties for gaining access to an agricultural production facility using false pretenses. Iowa Code § 717A.3A(1)-(2). The court agreed with the district court that the portion of the law prohibiting false statements to obtain employment at an animal production facility violated the First Amendment.

The case is Animal Legal Defense Fund v. Reynolds, 2021 WL 3504493 (8th Cir. Aug. 10, 2021).

Background

Several organizations, intending to assume “false pretenses” and make “false statements” to gain access to or employment at Iowa livestock farms, brought this lawsuit, claiming that the law was unconstitutional. Specifically, they alleged that it violated the First and Fourteenth Amendment of the U.S. Constitution by preventing them from conducting undercover investigations. The district court agreed, entering an injunction preventing the enforcement of the law. The district court ruled that the right to make the kinds of false statements implicated by § 717A.3A—whether they be investigative deceptions or innocuous lies—is “protected by our country’s guarantee of free speech and expression.” The State of Iowa appealed.

The 2012 Law

On appeal, the Eighth Circuit reviewed the 2012 law, and distinguished the “access provision” from the “employment provision”:

A person is guilty of agricultural production facility fraud if the person willfully does any of the following:

a. Obtains access to an agricultural production facility by false pretenses. (Access Provision)

b. Makes a false statement or representation as part of an application or agreement to be employed at an agricultural production facility, if the person knows the statement to be false, and makes the statement with an intent to commit an act not authorized by the owner of the agricultural production facility, knowing that the act is not authorized. (Employment Provision)

Iowa Code § 717A.3A(1)(a)-(b).

The court first noted that both the Access Provision and the Employment Provision constitute direct regulations of speech.  The Access Provision prohibits the expression of false pretenses, while the Employment Provision prohibits false statements. The First Amendment, made applicable to the States through the Fourteenth Amendment, says that “Congress shall make no law . . . abridging the freedom of speech.”  Generally, this “means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”

Access Provision

In considering whether the Access Provision violated the First Amendment, the Eighth Circuit explained, “False statements have not received constitutional protection when they involve defamation, fraud, or some other legally cognizable harm associated with a false statement, such as an invasion of privacy or the costs of vexatious litigation.”  The State argued that the Access Provision prohibited false statements leading to the legally cognizable harm of trespass.

The court agreed, finding that trespass has long been recognized as a private action. It rejected the district court’s holding that trespass was not a legally cognizable harm because an injured party may only be able to recover nominal damages. Nominal damages, the Eighth Circuit wrote, may be awarded when trespass occurs for the invasion of privacy and for violation of a property owner’s right to exclude. Because the government may restrict false speech that involves a legally cognizable harm, the court reversed the district court’s decision and ruled that the Access Provision did not violate the First Amendment.

Employment Provision

The court next considered § 717A.3A(1)(b), the Employment Provision. The State argued that the provision did not restrict protected speech, arguing from the U.S. Supreme Court opinion of United States v. Alvarez, that “where false claims are made to effect a fraud or secure moneys or other valuable considerations, say, offers of employment, it is well established that the Government may restrict speech without affronting the First Amendment.” 567 U.S. 709 (2012) (plurality opinion) (emphasis added). 

In rejecting the State’s argument, the Eighth Circuit ruled that the 2012 law went too far. “The proscription of the Employment Provision,” the court noted, “does not require that false statements made as part of an employment application be material to the employment decision. As such, the statute is not limited to false claims that are made ‘to secure’ an offer of employment.” The court noted several examples of proscribed false statements that would be immaterial to the employment decision. For example, job applicants may be prosecuted for “falsely profess[ing] to maintain a wardrobe like the interviewer's, exaggerat[ing] her exercise routine, or inflat[ing] his past attendance at the hometown football stadium.”

Given the breadth of the Employment Provision, the court stated, it proscribes speech that is protected by the First Amendment and does not satisfy strict scrutiny. “Insofar as the State has a compelling interest in preventing false statements made to secure offers of employment, a prohibition on immaterial falsehoods is not actually necessary to achieve the interest. There is a less restrictive means available: proscribe only false statements that are material to a hiring decision.” The court ruled that if intermediate scrutiny were the standard, the law’s lack of a materiality standard is what would distinguish this law from other Iowa laws prohibiting fraud, perjury, or lying to government officials. Therefore, the Court affirmed the district court’s order and ruled that the Employment Provision was too broad to satisfy the First Amendment.

Concurrence

Judge Grasz wrote separately to express his hesitation on the court’s order finding the Access Provision constitutional. While joining the opinion in full, he first noted the legal dilemma of protecting property versus protecting speech. Grasz concluded by writing that the main issue in future cases will be determining “whether access-by-deceit statutes will be applied to punish speech that has instrumental value or which is tied to political or ideological messages.” He wrote:

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.

An Additional Concurrence plus a Dissent

Judge Gruender also wrote separately to reaffirm that the Access Provision does not violate the First Amendment and to dissent from the court’s holding that the Employment Provision does. He wrote that a “legally cognizable harm” means an injury which “supported standing under U.S. law when the First Amendment was ratified in 1791.” Gruender argued that the Access Provision prohibits trespass which existed as a cause of action when the colonist brought over the general principles of English common law.

Dissenting from the majority’s conclusion that the Employment Provision violated the First Amendment, Judge Gruender argued that the plurality in Alvarez states otherwise. “Where false claims are made to effect a fraud or secure moneys or other valuable considerations, say offers of employment, it is well established that the Government may restrict speech without affronting the First Amendment.” Id. at 723. Thus, he asserted that false speech is not protected when it is undertaken to secure employment. Because the Iowa law prohibits an applicant from knowingly making a false statement to obtain employment in order to commit an unauthorized act, Judge Gruender concluded that he would reverse the district court’s judgment regarding both provisions.

What’s Ahead?

Since 2012, the Iowa Legislature has passed additional laws prohibiting unauthorized access to agricultural production facilities. Iowa Code § 717.3B, which went into effect March 14, 2019, criminalizes the use of deception to (1) gain access to or (2) obtain employment with an agricultural production facility “with the intent to cause physical or economic harm or other injury.” In other words, the State must prove a specific intent to cause actual harm or injury to obtain a conviction under the 2019 law. Five advocacy groups filed a lawsuit challenging the law in April of 2019, and on December 2, 2019, the U.S. District Court for the Southern District of Iowa issued a preliminary injunction preventing Iowa from enforcing this law, pending a ruling on the merits. The case has remained pending while the case challenging the 2012 law moved forward.

In 2020, the Iowa Legislature passed new Iowa Code § 716.7A to prohibit “food operation trespass” in Iowa:

A person commits food operation trespass by entering or remaining on the property of a food operation without the consent of a person who has real or apparent authority to allow the person to enter or remain on the property.

In 2021, the Iowa Legislature passed Iowa Code § 727.8A, which states:

A person committing a trespass as defined in section 716.7 (Iowa trespass law) who knowingly places or uses a camera or electronic surveillance device that transmits or records images or data while the device is on the trespassed property commits an aggravated misdemeanor for a first offense and a class D felony for a second or subsequent offense. (parenthetical added).

On August 10, 2021, the Animal Legal Defense Fund and other groups filed a lawsuit in the United District Court for the Southern District of Iowa, arguing that Iowa Code § 727.8A violates their First Amendment Rights.

On August 9, a different three-judge panel from the United States Court of Appeals for the Eighth Circuit 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 district court had dismissed the action brought by the Animal Legal Defense Fund after finding that the plaintiffs’ lacked standing. 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.