(CN) — Counsel for Iowa’s governor argued Tuesday that the Eighth Circuit Court of Appeals should reverse a federal court ruling that struck down Iowa’s so-called “ag-gag” law that makes it a crime for undercover journalists or animal-rights activists to investigate and report on animal abuse in livestock facilities.
Iowa’s 2012 statute, which outlaws making false statements to gain access to a livestock production facility, was ruled unconstitutional in 2019 by U.S. District Judge James Gritzner in Des Moines. The defendants appealed.
Under the 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.”
Assistant Attorney General Jacob Larson told a three-judge panel of the Eighth Circuit Tuesday that agriculture is considered Iowa’s most important industry. Iowa’s statute “doesn’t do anything remarkable,” he said, other than protecting the fundamental right of protecting private property from trespass. Making false representations to enter an ag facility falls outside the First Amendment, he said.
In response, plaintiff-appellees attorney Matthew Strugar of Los Angeles, argued the statute was passed to stop undercover investigations that expose animal mistreatment.
“The reason the state passed this statute is they couldn’t get at these investigations any other way,” he said. He argued that the lower court correctly decided that Iowa’s law violated the First Amendment because it penalizes speech, not conduct.
“Words trigger the statute,” Strugar said.
The 2017 suit naming Iowa Governor Kimberly Reynolds, Attorney General Tom Miller, and Montgomery County Attorney Bruce E. Swanson was brought by the Animal Legal Defense Fund, Iowa Citizens for Community Improvement, Bailing out Benji, People for the Ethical Treatment of Animals and Center for Food Safety.
“The Iowa ag-gag law is part of the animal agriculture industry’s nationwide campaign to silence the undercover investigations and corresponding media coverage that contribute to public debate about animal treatment and food safety,” the plaintiffs argued in their complaint. “Iowa already has laws that protect the interests that purportedly motivated the Legislature — laws protecting privacy, prohibiting trespass, and promoting biosecurity. The only ‘harm’ not accounted for by existing law is the embarrassment and political fallout suffered by the agriculture industry when otherwise-legal undercover investigations expose animal cruelty, unsanitary environments, and labor code violations inside factory farms.”
In its brief filed with the Eighth Circuit, the Iowa Attorney General’s office argued that “using false pretenses to gain access to or obtain employment, with an intent to commit an unauthorized act, at an agricultural production facility — does not fall within the protections of the First Amendment. The Supreme Court has recognized that false speech that results in a legally cognizable harm or bestows a material gain falls outside the protections of the First Amendment.”
U.S. District Judge James Gritzner in Des Moines disagreed.
“The law has the effect of criminalizing undercover investigations of certain agricultural facilities” including livestock confinements, egg production facilities, slaughterhouses and puppy mills, Gritzner wrote, ruling that it violated the First Amendment.
Gritzner cited a litany of horribles reported from livestock operations: “For example, in 2011, an undercover investigation at Iowa Select Farms produced reports of workers hurling small piglets onto a concrete floor. Another investigation at Iowa’s Sparboe Farms, documented mistreatment of hens and chicks. And yet another, conducted by PETA, exposed workers at a Hormel Foods supplier in Iowa ‘beating pigs with metal rods,’ ‘sticking clothespins into pigs’ eyes and faces, and a supervisor kicking a young pig in the face, abdomen, and genitals to make her move while telling the investigator, ‘You gotta beat on the bitch. Make her cry.’”
In an amicus curiae brief, 23 media organizations led by the Reporters Committee for Freedom of the Press argued that undercover sources have been a lifeblood of journalism.
“Reporters rely on both activists and regular members of the public as sources to report about the agricultural industry,” the media groups say. “Important journalism has relied on whistleblowers, sources who take jobs intending to carry out their employment responsibilities and also observe practices to inform the public, and other witnesses to events or conditions in the public interest.”
The brief says that this reporter-source relationship “has long served to safeguard the public interest and prompt reform and improvements that benefit the public at large. In many respects, investigative journalism was born out of Upton Sinclair’s infamous 1906 book on Chicago’s slaughterhouses, ‘The Jungle,’ and the work of his contemporaries.”
In a statement to Courthouse News Tuesday, Stugar said the panel “cut to the heart of the legal issues” in the case.
“We continue to believe that undercover exposés in the agricultural industry are critical not only protecting animal welfare, but also food safety, worker safety, and environmental protection. If Iowa can criminalize undercover exposés in agriculture, it can come after any other powerful and monied interest as well, in Iowa or anywhere else.”
The Iowa Attorney General’s office declined to comment on Tuesday’s oral argument.