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(CN) — An Iowa law that makes it a crime to lie on an employment application to enter an agricultural production facility to expose animal abuse violates the First Amendment, the Eighth Circuit ruled Tuesday.
However, the St. Louis-based appeals court found a separate provision of the state law, which criminalizes the act of entering animal facilities under false pretenses, does not violate the U.S. Constitution.
Under the 2012 Iowa law, “agricultural production facility fraud” is committed by a person who willfully “obtains access to an agricultural production facility by false pretenses [or] 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.”
The Animal Legal Defense Fund joined by four other groups sued Iowa Governor Kim Reynolds and other state officials in 2019 challenging the constitutionality of the statute, known informally as an “ag-gag” law.
Senior U.S. District Judge James Gritzner in Des Moines ruled later that year that both provisions of the statute violated the First Amendment because is restricts protected speech.
The Eighth Circuit panel agreed with Gritzner that the provision makes it a crime to lie on a job application violates the First Amendment, but it said using false pretenses to access an agricultural facility is not protected by the First Amendment.
On the question of whether lying on a job application is protected, the court cited the U.S. Supreme Court’s 2012 decision in U.S. v. Alvarez regarding the Stolen Valor Act that made it a crime to falsely claim to have won a Medal of Honor. A Supreme Court plurality in that case said that while lies may be protected speech, false claims made to defraud or to secure money or other valuable considerations, such as offers of employment, may be restricted without violating the First Amendment.
U.S. Circuit Judge Steven Colloton, a George W. Bush appointee, wrote the panel’s decision and noted Iowa’s law limiting lies on applications goes beyond statements that are “material” to obtaining a job to include the sort of “white lies” the plaintiffs say their investigators might make, such as not mentioning their membership in the Animal Legal Defense Fund.
“We may assume for the sake of analysis that a narrowly tailored statute aimed at preventing false claims to secure offers of employment would pass constitutional muster,” Colloton wrote. “As the district court observed, however, the Iowa statute sweeps more broadly. The proscription of the employment provision 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 effect’ an offer of employment; it allows for prosecution of those who make false statements that are not capable of influencing an offer of employment.”
As for the other provision that makes it a crime to enter an agricultural production facility by false pretenses, the Eighth Circuit agreed with Iowa’s argument that the provision is consistent with the First Amendment because it prohibits lies associated with trespassing, which is a “legally cognizable harm.”
Even if there is no physical damage to a property from a trespass, Colloton said, a property owner may be compensated for “diminution of privacy” and a violation of the “right to exclude,” both of which are legally cognizable harms.
“We therefore conclude that the access provision’s prohibition on assuming false pretenses to obtain access to an agricultural production facility is consistent with the First Amendment," the ruling states.
Colloton was joined on the panel by U.S. Circuit Judges Steven Grasz, a Donald Trump appointee, and Raymond Gruender, a George W. Bush appointee, who filed an opinion concurring in part and dissenting in part.
Gruender agreed that the access provision is constitutional and argued the job application provision is too, disagreeing with the majority on that point and citing the Supreme Court’s Alvarez decision to back up his view.
“The Alvarez plurality’s reasoning implies that both the access provision and the employment provision are constitutional,” he wrote.
In his concurring opinion, Grasz said that while he joined the decision in full, he expressed reservations about upholding the constitutionality of criminalizing gaining access by false pretenses.
“The court’s opinion today represents the first time any circuit court has upheld such a provision,” Grasz wrote. “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. Ultimately, the Supreme Court will have to determine whether such laws can be sustained, or whether they infringe on the ‘breathing room’ necessary to effectuate the promise of the First Amendment.”
The plaintiffs’ attorney, Matthew Strugar in Los Angeles, told Courthouse News he was pleased the Eighth Circuit stuck down the job application portion of the law.
“I am happy to see the court of appeals recognize that a law that makes criminal ‘white lies’ by job applicants to factory farms and slaughterhouses could not withstand constitutional scrutiny,” he said in an email Tuesday. “And while I’m disappointed the court didn’t take the same view with respect to the law’s provision targeting gaining access, the employment provision was always the main enemy because most investigations of factory farms and slaughterhouses are employment-based investigations. My clients will remain undeterred in their fight to expose the horrors that take place in factory farms and slaughterhouses.”
A spokesman for Governor Reynolds did not respond to a request for comment Tuesday.
A new lawsuit was filed in Des Moines federal court Tuesday challenging an updated version of the ag-gag law passed after two earlier versions of the law had been struck down by the federal court – including the 2019 decision upheld in part Tuesday by the Eighth Circuit.
The same plaintiffs say the latest version of the statute – which the Iowa Legislature passed last spring in an effort to get around the federal court rulings – is also unconstitutional. They seek an injunction against enforcement of the new law.
“The First Amendment protects against the state’s unjustified attempts to suppress speech,” the plaintiffs argue in Tuesday’s lawsuit. “Here, the state has created a special crime for engaging in speech without the slightest justification, and where the law’s history suggests its only purpose is to continue Iowa’s unlawful campaign to prevent the public from learning the truth about what occurs at animal facilities.”
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