Eighth Circuit Reverses District Court, Finds Two Farm Fraud and Trespass Laws Constitutional
In two separate lawsuits, several advocacy groups challenged Iowa’s Farm Trespass law and Trespass Surveillance statute. In both cases, a judge from the Southern District of Iowa previously held that the law violated the First Amendment and granted summary judgment in favor of the plaintiffs. Animal Legal Defense Fund v. Reynolds, 591 F.Supp.3d 397 (S.D. Iowa 2022); Animal Legal Defense Fund v. Reynolds, 630 F.Supp.3d 1105 (S.D. Iowa 2022).
The Eighth Circuit Court of Appeals released two separate opinions on January 8, 2024, and reversed the district court’s decisions, ruling that both statutes passed intermediate scrutiny and were, thus, constitutional. The cases are Animal Legal Defense Fund v. Reynolds, No. 22-1830 (8th Cir. Jan. 8, 2024) and Animal Legal Defense Fund v. Reynolds,No. 22-3464 (8th Cir. Jan. 8, 2024).
History of Iowa’s Agricultural Fraud and Trespass Laws
In 2012, the Iowa Legislature enacted its first of four agricultural fraud and trespass laws. The “Agricultural Production Facility Fraud” law imposed 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). Iowa Code § 717A.3A.
Several advocacy groups brought suit in federal district court alleging that both provisions violated the First Amendment. In 2019, a federal judge from the Southern District of Iowa agreed and granted a permanent injunction.
In response to the district court’s ruling, the Iowa Legislature passed the “Agricultural Production Facility Trespass” law that same year. Similar to the 2012 statute, this law included an Access Provision and an Employment Provision, but this law added an intent requirement to each provision, narrowing the reach of the statute to prohibit fewer false statements. Iowa Code § 717A.3B.
In 2020, the Iowa Legislature enacted Iowa Code § 716.7A to prohibit “food operation trespass” in Iowa. At the time of writing, there are no known active challenges to Iowa Code § 716.7A.
Most recently, the Iowa Legislature enacted the “Trespass Surveillance” law in 2021. Under Iowa Code § 727.8A, anyone who enters or accesses another person’s property without authorization and uses or places a recording device on the property is guilty of an aggravated misdemeanor.
The constitutionality of the 2012, 2019, and 2021 laws has been challenged in federal district court. In these two most recent cases, the Eighth Circuit Court of Appeals reversed the lower court’s ruling and determined that both the Agricultural Production Facility Trespass law (2019 law) and Trespass Surveillance law (2021 law) were constitutional. The procedural history and details of the opinions are discussed below.
Iowa’s Farm Trespass Law and Litigation - Iowa Code § 717A.3B
After a federal judge found Iowa’s 2012 law unconstitutional, the State appealed. On review before the Eighth Circuit, the court affirmed that the Employment Provision was unconstitutional. However, the court reversed the district court decision and upheld the constitutionality of the Access Provision.
While the appeal was pending, the Legislature enacted the “Agricultural Production Facility Trespass” law. Iowa Code § 717A.3B. Despite the addition of the intent element, the same advocacy groups challenged this law claiming it violated the First Amendment. Once again, a federal judge from the Southern District of Iowa found the 2019 version of the law unconstitutional. Animal Legal Defense Fund v. Reynolds, 91 F.Supp.3d 397 (S.D. Iowa 2022).
Government Regulation of False or Deceptive Speech
On appeal before the Eighth Circuit, the court first noted that the government may prohibit certain types of speech including “intentionally false speech undertaken to accomplish a legally cognizable harm.” Here, the court found that the Access Provision (§ 717A.3B(1)(a)) prevents the legally cognizably harm of trespass. The Employment Provision (§ 717A.3B(1)(b)) prevents the legally cognizable harm of gaining employment through the use of deception on matters material to employment.
Regardless of whether the speech itself is proscribable, the government may not prohibit speech solely based on its content or viewpoint. Under the 2019 law, a person commits agricultural production facility trespass if he gains access or employment “with the intent to cause physical or economic harm or injury….” Iowa Code § 717A.3B(1)(a)-(b). As such, the plaintiffs argued that the law distinguished among speakers based on their viewpoints.
Both the Tenth and Seventh Circuit have held that statutes with an intent element discriminate based on viewpoint and are therefore unconstitutional. Animal Legal Defense Fund v. Kelly, 9 F.4th 1219 (10th Cir. 2021); Brown v. Kemp, 86 F.4th 745 (7th Cir. 2023). This court was not persuaded but instead found guidance in Animal Legal Defense Fund v. Wasden, 878 F.3d 1184 (9th Cir. 2018).
In Wasden, the Ninth Circuit Court of Appeals found Idaho’s Interference with Agricultural Production law unconstitutional. Similar to Iowa’s 2019 law, the Idaho law criminalized gaining entry to a farm through the use of deception. The court there suggested that the statute could be constitutional if the state would “narrow the subsection by requiring specific intent or by limiting criminal liability to statements that cause a particular harm.”
In reversing the district court’s order, the Eighth Circuit concluded that the 2019 law did not discriminate based on viewpoint but provided criminal penalties “for those who intend the harm they commit.” The court stated that the Iowa law was “not a viewpoint-based restriction on speech, but rather a permissible restriction on intentionally false speech undertaken to accomplish a legally cognizable harm.”
Iowa’s Trespass Surveillance Law and Litigation – Iowa Code § 727.8A
These plaintiffs brought a similar lawsuit against the State for its Trespass Surveillance law. Under the statute, anyone who trespasses and “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” is guilty of an aggravated misdemeanor. Iowa Code § 727.8A.
At the onset, the State of Iowa argued that the plaintiffs lacked standing and moved to dismiss the case. The district court disagreed finding that the defendants conceded that the plaintiffs “may have suffered an injury by not being able to engage in trespass and record said trespass under Iowa’s Trespass Surveillance statute….” Turning to the merits of the case, the district court concluded that the law violated the First Amendment. Animal Legal Defense Fund v. Reynolds, 630 F.Supp.3d 1105 (S.D. Iowa 2022).
Litigation of the Trespass Surveillance Law - Standing
On appeal, the Eighth Circuit disagreed that the State conceded that the plaintiffs established standing. Nevertheless, the court found that the plaintiffs adequately alleged Article III standing to sue under the “Use Provision.” To show standing, a plaintiff must show an injury in fact. Animal Legal Defense Fund v. Vaught, 8 F.4th 714 (8th Cir. 2021). “[W]hen a party brings a pre-enforcement challenge to a statute that both provides for criminal penalties and abridges First Amendment rights, ‘a credible threat of present or future prosecution itself works an injury that is sufficient to confer standing.’” Minn. Citizens Concerned for Life v. FEC, 113 F.3d 129, 131 (8th Cir. 1997)
In its pleadings, one of the plaintiffs alleged that its members intentionally record themselves trespassing in order to increase their advocacy efforts. The court concluded that the plaintiffs do suffer an injury in fact because the Use Provision criminalizes this act and, thus, chills their speech.
However, the court found that the plaintiffs lacked standing to challenge the Place Provision because the plaintiffs only alleged that they use the cameras, not that they placed the cameras.
Constitutionality of the Trespass Surveillance Law
The plaintiffs claimed that the law was both facially unconstitutional and overbroad. The court disagreed and found that the law had a plainly legitimate sweep and it was narrowly tailored.
The Eighth Circuit agreed with the lower court that the Trespass Surveillance Law should be reviewed under intermediate scrutiny. To pass intermediate scrutiny, the Act must be narrowly tailored to serve the State's significant governmental interests and it must not burden substantially more speech than is necessary to further the government’s legitimate interests. The court found that the law did serve the State’s significant interest in protecting the privacy of individuals as well as deterring theft of proprietary information.
The lower court reasoned that because other laws exist that protect privacy concerns, the law was not narrowly tailored. See, e.g., Iowa Code § 709.21 (invasion of privacy); § 716.7(2)(a)(7) (peeping tom law). The court rejected this notion. The purpose of the law is to prevent a greater injury than simply trespassing. Namely, trespass coupled with a video recording. Because the State’s goal of protecting privacy rights could not be accomplished by increasing the penalty for trespass, the Eighth Circuit concluded that the law was narrowly tailored.
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