Federal Court Finds Another Iowa Farm Trespass Law Unconstitutional

October 6, 2022 | Kitt Tovar Jensen

On September 26, 2022, a federal judge in the Southern District of Iowa again found an Iowa farm trespass law to be unconstitutional. Under Iowa Code § 727.8A (the “Trespass Surveillance law”), 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. This is Iowa’s third farm fraud and trespass law found to be in violation of the First Amendment by this court. The case is Animal Legal Defense Fund v. Reynolds, 2022 WL 4998999 (S.D. Iowa Sept. 26, 2022).

Iowa’s Trespass Surveillance Statute

In the current case, a group of advocacy organizations filed a federal lawsuit against the State of Iowa alleging that the Trespass Surveillance law violated the First Amendment. Enacted in 2021, this law criminalizes the unauthorized entry or access onto another’s property and placing a recording device on the trespassed property. Iowa Code § 727.8A.

The defendants filed a motion to dismiss claiming that the plaintiffs lacked standing. The defendants acknowledged 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….” This concession, the district court reasoned, established an injury for standing purposes.

First Amendment Regulation of Speech or Conduct

Turning to the merits of the case, the district court considered whether the Act violated the First Amendment. The First Amendment, made applicable to the States through the Fourteenth Amendment, prohibits laws “abridging the freedom of speech.” U.S. Const. amend. I. In Telescope Media Grp. v. Lucero, the Eighth Circuit held that the recording, editing, and distribution of videos is protected speech. 936 F.3d 740, 751 (8th Cir. 2019).

The defendants asserted that videos only become speech through the editing process. Therefore, they argued, the statute does not restrict speech. Although the Trespass Surveillance law does not prohibit the editing, publication, or distribution of a recording, the court found that the prohibition on recording restricted protected speech. It reasoned that without the recording, production of a finished video would be impossible.

First Amendment Rights on Private Property

The defendants also argued that the First Amendment application was limited because the law applied to speech on private property. Relying on Animal Legal Def. Fund v. Kelly, the district court noted that there is a difference between an individual’s “ability to exclude from [their] property someone who wishes to speak” and “the government's ability to jail the person for that speech.” See 9 F.4th 1219, 1228 (10th Cir. 2021). Here, the law created criminal penalties—enforced by the state—for individuals who engaged in a protected activity. As a result, the court concluded that the law was subject to First Amendment scrutiny.  

First Amendment Application

Both parties agreed intermediate scrutiny should apply. To pass intermediate scrutiny, the law must be “narrowly tailored to serve a significant governmental interest.” The government must show that the law is not over-inclusive by providing evidence that it considered less-restrictive means to achieve its goals.

The defendants claimed that the law promotes the governmental interests of protecting property rights from trespass. As evidence, the defendants point to two instances where a trespasser recorded conditions of animals on farm properties. The court found that this was insufficient to show that the law was narrowly tailored. Additionally, the court noted two other Iowa laws already in effect which criminalize recordings to protect privacy concerns. See, e.g., Iowa Code § 709.21 (invasion of privacy); § 716.7(2)(a)(7) (peeping tom law). Both of those laws require a “reasonable expectation of privacy.” Therefore, the district court granted the motion for summary judgment in favor of the plaintiffs.

Previous Farm Fraud & Trespass Laws and Litigation in Iowa

Since 2012, the Iowa Legislature has enacted several agricultural fraud and trespass laws. The first two laws, sometimes referred to as “ag-gag” laws, provide criminal penalties for the use of fraud or deception to gain access to or employment at an agricultural facility.

The Agricultural Production Facility Fraud law went into effect in 2012. This 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). Iowa Code § 717A.3A.

Several advocacy groups brought a lawsuit against the State of Iowa claiming that the 2012 law was unconstitutional. A federal district court judge agreed finding that both provisions violated the First Amendment. On appeal to the Eighth Circuit, the court affirmed that the Employment Provision prohibited speech in violation of the First Amendment. However, the court determined that the Access Provision was constitutional as it only restricted false speech that involves the legally cognizable harm of trespass.

In response to the district court’s ruling, the Iowa Legislature passed the “Agricultural Production Facility Trespass” law in 2019. Iowa Code § 717A.3B provided criminal penalties for those who, intending to harm an agricultural production facility, use deception to gain access to or employment with that facility. The same plaintiffs challenged the 2019 law and the district court again found that the law violated the First Amendment. The State of Iowa has appealed the district court decision to the Eighth Circuit. No oral argument has been scheduled at this time.

Then, in 2020, the Iowa Legislature enacted 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.