Several non-profit organizations “dedicated to reforming industrial agriculture” through undercover investigations challenged Arkansas Code § 16-118-113. This law grants owners a civil remedy against those who knowingly access their property without authority. The plaintiffs claimed that the statute violated the First Amendment and sought an injunction preventing Peco Foods, Inc., a chicken farm the plaintiffs intended to investigate, from bringing an enforcement action under the law. On appeal, the Eighth Circuit found that the plaintiffs had Article III standing and remanded the case to the district court.

The district court granted the defendant’s Rule 12(b)(6) motion to dismiss. The First Amendment prohibits the government from restricting speech. It does not prohibit private parties from restricting speech. Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019). The district court concluded the Eighth Circuit’s Article III determination did not equate to state action. Additionally, the defendant had not filed an action to enforce the law. Because there is no state action, the First Amendment did not apply.

The case is Animal Legal Defense Fund v. Peco Foods Inc., 2023 WL 2743238 (E.D. Ark. March 31, 2023).