First Amendment

Animal Legal Defense Fund fails to persuade 8th Circuit that 'ag-gag' laws violate First Amendment

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A federal appeals court has upheld two “ag-gag” laws in Iowa in a First Amendment challenge by the Animal Legal Defense Fund and other animal welfare groups. Image from Shutterstock.

A federal appeals court has upheld two “ag-gag” laws in Iowa in a First Amendment challenge by the Animal Legal Defense Fund and other animal welfare groups.

The 8th U.S. Circuit Court of Appeals at St. Louis upheld the laws in two separate opinions, report the Des Moines Register, Law360 and Courthouse News Service.

The Volokh Conspiracy published parts of the Jan. 8 opinions here and here.

One of the laws is a 2021 trespass surveillance law that bans knowing placement or use of a camera or surveillance device that transmits or records while on trespassed property.

The 8th Circuit said the use provision of the surveillance law is not unconstitutional on its face in an opinion by Judge L. Steven Grasz, an appointee of former President Donald Trump. The decision left open the door, however, to a challenge to the law as applied to the plaintiffs.

The 8th Circuit said at least one of the plaintiffs had standing to challenge the provision regarding use of cameras but not the provision regarding placement of cameras. The state has significant interests in preventing surveillance trespass, and the use provision of the law does not restrict speech more than necessary to achieve its ends, the appeals court said.

“Without a doubt, trespassing is a legally cognizable injury because it harms the privacy and property interests of property owners and other lawfully present persons,” Grasz wrote. “Trespassers exacerbate that harm when they use a camera while committing their crime. The act is tailored to target that harm and redress that evil.”

The other law bans false statements on an employment application when the deception is “on a matter that would reasonably result in a denial of an opportunity to be employed.” The law only applies only when the deceptive speech is made to gain employment “with the intent to cause physical or economic harm or other injury” to the agricultural production facility.

A prior version of the employment application law was struck down because it penalized statements that were not material to an employment decision. The intent requirement in the revised law is not an impermissible viewpoint-based restriction, the 8th Circuit said in an opinion by Judge Steven Colloton, an appointee of former President George W. Bush.

“In our view,” Colloton wrote, “the Iowa statute is not a viewpoint-based restriction on speech but rather a permissible restriction on intentionally false speech undertaken to accomplish a legally cognizable harm.”

Caitlin Foley, an attorney representing the Animal Legal Defense Fund, told Law360 that the group is disappointed in the decisions, which she said “support secrecy in industrial agriculture.” But the group will continue its as-applied challenge to the trespass surveillance law.

Republican Iowa Gov. Kim Reynolds said in a statement the decisions are “a win for both Iowans and the country” because Iowa farmers “feed and fuel the world.”

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