Chief Judge Stephanie M. Rose of the Southern District of Iowa issued an order on Iowa’s second so-called “ag-gag” law, finding it unconstitutional because it violates the First Amendment.
Monday’s order finds that Iowa Code § 717A.3B is unconstitutional and will not be enforceable because it discriminates speech by content and viewpoint.
Since 2012, Iowa has passed four laws in response to animal rights activist activities, such as publishing videos and images from inside large livestock facilities, which the activists sometimes accomplished by becoming employees of those facilities. These laws, known as ag-gag laws are essentially food operation trespass laws that prohibit or restrict recording at industrial farm operations.
The first, second and fourth ag-gag laws have been legally challenged. In 2019, Judge James Gritzner ruled that the first law violated the First Amendment. In August 2021, the Eighth Circuit partially reversed the decision, upholding the lower court’s decision finding it unconstitutional because it criminalized false statements, but disagreed with Judge Gritzner on whether trespass was a legally cognizable harm. The appellate panel concluded that it was a legally cognizable harm and therefore this provision was “consistent with the First Amendment.” While this case was pending, the state passed the second law in an effort to address the court’s concerns.
The second law in question went into effect in March 2019 and is substantially similar to the first law. It makes it a criminal offense for anyone who uses deception in order to gain access to or obtain employment with an agriculture production facility “with the intent to cause physical or economic harm or other injury,” which includes committing unauthorized actions like videotaping once employed by a facility.
In the instant action, the plaintiffs are five non-profits for animal protection, food safety and other issues; they include the Animal Legal Defense Fund, Bailing out Benji, Iowa Citizens for Community Improvement, People for the Ethical Treatment of Animals, and the Center for Food Safety. Accordingly, the plaintiffs “gather evidence of animal abuse and other alleged illegal conduct by conducting undercover investigations of the day-to-day activities at facilities where they suspect wrongdoing occurs.” In order to perform these investigations, the plaintiffs “typically need to conceal their true identities and intentions to gain access to a facility, which is often gained through employment.”
They sued the Governor of Iowa, the Attorney General of Iowa, and the County Attorney for Montgomery County, Iowa, for their ability to enforce this ag-gag law, which the plaintiffs assert infringes their constitutional rights because it violates the First Amendment by discriminating based on viewpoint.
Meanwhile, the defendants claim that the law does not regulate protected speech under the First Amendment.
In their argument, the plaintiffs contend that Iowa’s second ag-gag law “is indistinguishable from a Kansas law which the Tenth Circuit recently struck down as unconstitutional on viewpoint discrimination grounds.” The appellate court found that the Kansas law “concerned speech because deception was an element of the statute” and that this law regulated speech and discriminated based on viewpoint.
The Kansas lawsuit could be heard by the Supreme Court. The Animal Legal Defense Fund, who is a plaintiff in this case, argued in its brief opposing certiorari that Kansas’s law that criminalizes undercover investigations of animal facilities for health and welfare violations is unconstitutional and should be tossed.
Iowa’s second law was addressed by Chief Judge Rose, who finds that the law should not be enforced because it is a content-based restriction, which is unconstitutional.
Specifically, the court holds that § 717A.3B is “a speech regulation” because deception “requires an expression of information in which the content of the communication, whether verbal or nonverbal, must be examined to determine whether it was in fact deceptive.” The court also notes that this regulates unprotected speech, but this “does not grant a free license for the government to regulate that speech based on viewpoint.”
Chief Judge Rose, contends that § 717A.3B “does not prohibit all deceptive trespassers, it only imposes liability based on the ‘intent’ of the trespasser,” thus it considers the viewpoint of the trespasser to determine criminality, which is prohibited.
The judge added that “Iowa seeks to protect private property rights by singling out for punishment, at least in part, trespassers based on their disfavored viewpoint of agriculture,” which is impermissible. The court found this law to be aimed at the plaintiffs’ investigations.
The judge adds that the legislature should determine if specific facilities “are entitled to special legal protections. However, the First Amendment does not allow those protections to be based on a violator’s viewpoint.”
