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.
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