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Tenth Circuit Won’t Give Wyoming’s Ag-Gag Law a Free Pass

Wyoming’s “ag gag” law, enacted to criminalize collection of research data on public and private land, may be unconstitutional, the 10th Circuit ruled, reversing and remanding a 2016 ruling.

CHEYENNE, Wyo. (CN) — Wyoming’s “ag gag” law, enacted to criminalize collection of research data on public and private land, may be unconstitutional, the 10th Circuit ruled, reversing and remanding a 2016 ruling.

In 2015, Wyoming enacted two trespass laws, prohibiting people from entering “open land for the purpose of collecting resource data” without permission from the owner. To “collect” required two elements: (1) taking a “sample of material” or a “photograph,” or “otherwise preserv[ing] information in any form” that is (2) “submitted or intended to be submitted to any agency of the state or federal government.”

In 2016, the state amended the laws to eliminate reference to “open lands” and penalize anyone who enters or crosses private land for the purpose of collecting resource data or who actually collects that data.

The Western Watersheds Project, the National Press Photographers Association, the Natural Resource Defense Council and others sued the state, claiming it enacted the law to prevent environmentalists from discovering and reporting harmful landowner practices.

Western Watershed takes water samples from public lands downstream from ranches and agribusiness, to test for E. coli contamination.

The agribusiness-friendly Legislature claimed the laws were to prevent trespassing.

Several Western states have enacted ag gag laws, ostensibly for similar reasons. Animal rights activists, including co-plaintiff People for the Ethical Treatment of Animals, have sued states, often successfully, claiming the laws are intended to suppress reporting on animal abuse.

The plaintiffs, including the Center for Food Safety, argued that the laws unconstitutionally prohibited collecting water samples on public land, taking handwritten notes about habitat conditions, make an audio recording of one’s observation of vegetation, or photographing animals.

U.S. District Judge Scott Skavdahl dismissed the complaint in July 2016, finding no constitutional right to enter private land to take samples.

“Plaintiffs’ claims are erroneously premised upon their perceived First Amendment right to trespass upon private property to collect resource data,” Skavdahl ruled. “No such constitutional right exists. To the contrary, the United States Supreme Court ‘has never held that a trespasser or an uninvited guest may exercise general rights of free speech on property privately owned.’”

The 10th Circuit reversed and remanded on Sept. 7.

“We conclude that plaintiffs’ collection of resource data constitutes the protected creation of speech,” Tenth Circuit Judge Carlos Lucero wrote for the unanimous panel. “The Supreme Court has explained that ‘the creation and dissemination of information are speech within the meaning of the First Amendment. Facts, after all, are the beginning point for much of the speech that is most essential to advance human knowledge and to conduct human affairs.’” (Citation omitted, to Sorrell v. IMS Health Inc., 564 U.S. 552, 570 (2011)).

The panel found that the “plaintiffs use the speech-creating activities at issue to further public debate.” It remanded with instructions.

Western Watersheds Project attorney Jonathan Ratner called the ruling “a victory for citizen science and for conservation groups who enforce environmental protection standards when agencies turn a blind eye, and a resounding defeat for the State of Wyoming’s efforts to shield special interests from public scrutiny, oversight, and accountability.”

Natural Resources Defense Council litigation director Michael Wall agreed.

“The Wyoming statute tried to cut science and freedom of speech out of government decision making,” Wall said. “In this moment where science and the free press are under attack, the federal court upheld the essential role of public participation and free speech in our democracy. This decision will rightly put one of the most egregiously un-American laws I have seen in recent years on the scrapheap with other censorship laws, where it belongs.”

Joining Lucero on the panel were Tenth Circuit Judges Monroe McKay, and Harris Hartz.

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