Eighth Circuit Revives Undercover Investigators’ Action against Arkansas Animal Farms

August 20, 2021 | Kitt Tovar Jensen

Update: On March 31, 2023, the Eastern District of Arkansas granted one of the defendant’s Rule 12(b)(6) motion to dismiss for failure to state a claim. The district court concluded that the First Amendment applies to state action, not private actors such as the defendant. Additionally, the Eighth Circuit’s Article III determination did not equate to state action. Animal Legal Defense Fund v. Peco Foods, Inc., 2023 WL 2743238 (E.D. Ark. March 31, 2023).

On August 9, 2021, the Eighth Circuit revived a lawsuit brought by the Animal Legal Defense Fund and others against a pig farm and a chicken farm. The lawsuit sought to prevent the farms from filing civil actions against the plaintiffs’ members in response to planned undercover investigations. The lawsuit specifically challenged an Arkansas law granting property owners a civil remedy against those who knowingly access their property without authority. The district court dismissed the complaint, finding that any injury was too speculative since neither farm had hired one of the plaintiffs’ investigators or initiated any civil actions against them. On appeal, the Eighth Circuit reversed, finding that the complaint sufficiently alleged injury in fact, which was enough for Article III standing.

Arkansas Law

In 2017, the Arkansas General Assembly enacted Arkansas Code § 16-118-113, Civil cause of action for unauthorized access to property.” Under the law, a person who knowingly enters a nonpublic area of a commercial property without authority is liable to the property owner for any damage. This would include entering onto a property “for a reason other than a bona fide intent of seeking or holding employment or doing business with the employer” then capturing or recording videos, pictures, or documents from the property “in a manner that damages the employer.”

In 2019, a group of non-profit organizations “dedicated to reforming industrial agriculture” to prevent “possible harm present in the industrialized food production system” brought a lawsuit challenging the constitutionality of the law and seeking injunctive relief to prevent the defendants from bringing a civil suit against them. The two defendants are a swine operator, who is also the state legislator who sponsored § 16-118-113, and a poultry processing plant company with multiple facilities in Arkansas.

The plaintiffs claim that they have “specific and definite plans” to investigate the defendants’ facilities, but are unable to collect such information because the law “chills” their speech in violation of the First Amendment. The district court dismissed the complaint finding that the plaintiffs did not have Article III standing. Animal Legal Defense v. Vaught, 2020 WL 10319760 (E.D. Ark. Feb. 14, 2020). The plaintiffs appealed.

Article III Standing

On appeal, the Eighth Circuit considered whether the plaintiffs adequately alleged Article III standing to sue. To show standing, a plaintiff must show an injury in fact. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992). A plaintiff meets this requirement if he can establish “an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 159 (2014).

In this case, two of the four plaintiffs sought to hire an investigator to gain employment by the defendants to collect video and audio recordings as well as any relevant employer records. This information would then be used by all of the plaintiffs in their advocacy work. Because the First Amendment protects “the creation and dissemination of information,” the court held that the plaintiffs’ conduct was arguably affected with a constitutional interest. See Sorrell v. IMS Health Inc., 564 U.S. 552, 570 (2011).

Next, the court considered whether the plaintiffs intended to engage in conduct proscribed by the Arkansas law. The statute prohibits “an act that exceeds” a person's authority such as obtaining or recording employer data, images, or sounds in order to use that information “in a manner that damages the employer.” Ark. Code § 16-118-113(c)(1)-(2). The plaintiffs alleged that the hired investigator, after obtaining employment, would “gather information and record audio files and video footage in the facilities’ nonpublic areas” which would damage the defendants.

Additionally, the statute prohibited “assisting” an individual in using information collected in this way to damage the employer. Although two of the plaintiffs did not claim they intended to partake in the investigation, they still asserted that they would be in violation of the law because they planned on using the documentation in their advocacy efforts. The court agreed, finding that the plaintiffs’ intended conduct would be in violation of the statute.

Credible Threat of Prosecution

Lastly, the defendants assert that the plaintiffs’ fear of prosecution was not credible but speculative. As the district court noted, a long chain of events must first occur before any enforcement of the law could take place:

An investigator hired by [the plaintiffs] (who they have already chosen) gets a job at one of [the defendants’] facilities, the investigator performs the investigation…[the plaintiffs] receive information from the investigations that they…promulgate in the public interest (information such as has led to prosecutions, food safety recalls, citation and closures in the past), and [Appellees] file civil actions pursuant to [the statute] as a result.

The court disagreed, finding that the plaintiffs’ claims of past successful investigations of similar facilities showed their fear was not speculative.

The defendants also argued that they would not enforce the statute because the type of conduct the plaintiffs wished to expose did not occur on the premises. Regardless of the defendants’ specific practices, the plaintiffs are still interested in investigating the facilities because the swine operator, who sponsored § 16-118-113, allegedly “wished to conceal the activities and conditions” of her operation. Additionally, the plaintiffs intend to investigate the poultry processing company’s authorized use of a high-speed slaughter line.

The court, taking the plaintiffs’ allegations as true, concluded that they intended to obtain recordings of the facilities and use them. Additionally, because the defendants did not respond to the plaintiffs’ request to waive their rights under the statute, it was likely the defendants would act predictably and exercise their rights. Therefore, the court held that the plaintiffs’ fear was credible and they sufficiently alleged injury in fact.


Judge Shepherd dissented from the majority’s conclusion that the plaintiffs sufficiently alleged injury in fact, instead concluding that the plaintiffs’ fear of prosecution was speculative. He wrote that a plaintiff’s fear of prosecution is credible when it is “certainly impending” because he is in a position to carry out the conduct prohibited by law.

Here, Shepherd argued that the plaintiffs did not engage in self-censorship due to fear of prosecution. Rather, the plaintiffs’ alleged injury was based on events outside of their control. Not only must the defendants, or a business with access to the defendants’ facilities, hire the plaintiffs’ investigator, but the defendants must actually engage in the type of conduct the plaintiffs seek to report. Because the plaintiffs’ ability to undertake the prohibited conduct relied on a chain of events which may or may not occur, Judge Shepherd concluded that he would affirm the district court’s dismissal.

The case is Animal Legal Defense Fund v. Vaught, 2021 WL 3482998 (8th Cir. Aug. 9, 2021).