By Chris Kozak, Plews Shadley Racher & Braun LLP
Recently, the U.S. Court of Appeals for the Eighth Circuit upheld, in part, an Iowa law prohibiting “Agricultural Production Facility Fraud.” Animal Legal Defense Fund v. Reynolds, No. 19-1364 (8th Cir., Aug. 10, 2021). In relevant part, the law made it a misdemeanor for any person to willfully “[o]btain[] access to an agricultural production facility by false pretenses” (the “access provision”) or “[m]ake[] a false statement or representation as part of an employment application or agreement to be employed at an agricultural production facility” (the “employment provision.”). Iowa Code §717A.3A(1)(a)-(b). Indiana attempted to pass similar, though not identical, laws in 2012, 2013, and 2014, but none passed due to opposition and First Amendment concerns. The Eighth Circuit’s decision may prompt the General Assembly to revisit those proposals.
In Reynolds, animal-rights activists challenged the law, which they referred to as an “Ag-Gag” law, as an unconstitutional because it punished speech—principally their ability to obtain access to factory farms to expose purported “unsafe conditions” or “animal cruelty.” The Eighth Circuit agreed that the law was overbroad as written, but not for the reasons that the animal-rights activists proposed. Writing for the majority, Judge Colloton reasoned that the state likely could punish materially false statements made to induce offers of employment (and thus could likely punish an animal-rights activist who lied about his or her identity or intent on a job application). But as written, the court said, the law was overbroad because it would make it a crime to tell an “innocuous white lie[] to ingratiate themselves to their interviewers.”
As to the “access” provision, however, the court found that the law passed constitutional muster. It relied principally on the Supreme Court’s splintered decision in United States v. Alvarez, 567 U.S. 709 (2012), which struck down a federal law making it a crime to represent oneself as having been awarded a military honor. The Justices did not agree on the reason the law was invalid, but the Eighth Circuit interpreted the case as denying constitutional protection when a lie causes some “legally cognizable harm.” Trespass has long been understood to cause such a harm, Judge Colloton reasoned. So lying in order to gain access to an agricultural production facility did not violate the First Amendment because it amounted to a trespass. In support of that position, the court cited two of the Supreme Court’s cases from this last Term; one holding that standing exists for “completed” torts even if nominal damages are the only remedy, and one holding that “the right to exclude” is a significant property right for purposes of the federal Takings Clause.
The decision is notable because all three judges on the panel wrote separately, which is unusual and signals a potential for rehearing by the full Eighth Circuit or certiorari by the Supreme Court. Judge Grasz (appointed in 2018 by President Trump) joined the lead opinion, but only “hesitantly” as to the access provision. He observed this was the first time any Circuit had upheld such a provision, and he worried that it was being enforced “[a]t a time in history when a cloud of censorship appears to be descending, along with palpable public fear of being ‘cancelled’ for holding ‘incorrect’ views.” Noting the lack of a consensus in Alvarez, his concerns lay the groundwork for review by the Supreme Court, whose composition has shifted substantially since 2012.
Judge Gruender (appointed in 2004 by President Bush) joined the other half of the lead opinion, arguing that both provisions should be upheld. He found Alvarez to provide limited guidance on the subject and, in his analysis of the Justices’ rationales, though a majority of the Justices would vote to uphold the employment provision. He noted the law was aimed at the kind of employment-inducing fraud the court agreed was outside the First Amendment’s protection, not the “innocuous white lies” that bothered Judge Colloton or the “censorship” that worried Judge Grasz.
Given the Eighth Circuit’s internal disagreements and the lack of consensus in the Alvarez case, the Supreme Court may decide to weigh in on this case. Or it may wait for other Circuits with ag-heavy constituencies (such as the Sixth, Seventh, or Tenth Circuits) to resolve challenges to similar laws. Either way, and regardless of whether one views these tactics as “industrial espionage” or “undercover advocacy,” the resolution of this constitutional issue will have major impacts for food producers and other industries whose operations are (or can be) a matter of public interest.
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