Iowa defends ‘ag-gag’ laws before federal appeals court

DES MOINES, Iowa (CN) — In arguments before the Eighth Circuit Wednesday, lawyers for the state of Iowa fought to uphold two state laws designed to protect livestock production facilities from undercover investigations aimed at publicly exposing animal cruelty.

In defending the 2021 statute that makes it a crime to use a camera or electronic surveillance device while trespassing, Deputy Attorney General Leif Olson told the panel of judges that trespassers cannot cloak their illegal actions in the practice of journalism.

“Those who style themselves journalists are not exempt from the law,” Olson said. “The question here is whether plaintiffs who call themselves news gatherers and publishers are exempt from generally applicable prohibition on conducting additional invasions of privacy that follow a criminal trespass that is already invading privacy. They are not.”

Animal rights groups challenged the statute outlawing recording while trespassing and a second law that makes it a crime to misrepresent intent when applying for a job in an agricultural production facility.

Filing a federal lawsuit, the groups said the so-called "ag-gag" laws target their constitutional rights of free speech.

A district court struck down the original version of the laws for violating of the First Amendment, a ruling that was affirmed in part and reversed in part by the Eighth Circuit on appeal. The trial court subsequently found the state’s revised version of that statute unconstitutional as well.

The Iowa Legislature’s 2012 statute titled “Agricultural Production Facility Fraud” makes it a serious misdemeanor to use false pretenses to get access to an agricultural production facility, or to make false statements on an employment application to be hired 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.”

That statute restricted protected speech, Senior U.S. District Judge James Gritzner in Des Moines ruled in 2019.

The Eighth Circuit in its 2021 ruling agreed with Gritzner that the provision making it a crime to lie on a job application violates the First Amendment, but said using false pretenses to access an agricultural facility is not protected by the First Amendment. One member of the three-judge panel dissented, saying he would have reversed the lower court on both issues.

On the question of whether lying on a job application is protected, the Eighth Circuit panel majority 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.

Iowa’s law limiting lies on applications, however, 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, the appeals court said.

As for the second provision that makes it a crime to enter an agricultural production facility by false pretenses, the Eighth Circuit agreed with the state’s argument that Iowa’s statute is consistent with the First Amendment because it prohibits lies associated with trespassing, which is a “legally cognizable harm.” 

In making the case that Iowa’s latest statute aimed at protecting animal production facilities from undercover trespassers is unconstitutional, David Muraskin, attorney for the plaintiff appellees, said the state can regulate trespass; what it cannot do is regulate trespass and speech.

“That gets at the heart of the First Amendment,” Muraskin said.

U.S. Circuit Judge Steven Colloton posed a hypothetical involving recording inside a politician’s bedroom.

“There are a lot of newsworthy things that happen in private,” such as a politician having an affair or accepting a bribe, he said. “Are reporters permitted to trespass into private homes and private offices to plant recording devices if the recording device would produce newsworthy information?”

Muraskin said there is an expectation of privacy interest in the home.

“There is no expectation of privacy of slaughterhouses or in loading docks. We’re not talking about offices or private homes. We’re talking about places where people come and go regularly, [where] there is no expectation of privacy, no trade-secret protection.”

In addition to appellate Judge Colloton, who was appointed by President George W. Bush, the panel for Wednesday’s oral argument included U.S. Circuit Judges Jonathan Kobes and L. Steven Grasz, both appointed by President Donald Trump.

The court did not say when a ruling would be issued.

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