Eighth Circuit Upholds Part Of Iowa "Ag Gag" Law

• Published date: 11 August 2021
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Constitutional & Administrative Law, Trials & Appeals & Compensation
• Law Firm: Duane Morris LLP
• Author: Mr John M. Simpson

Today, the U.S. Court of Appeals for the Eighth Circuit upheld, in part, the constitutionality of an Iowa law that makes it a criminal offense to obtain access to an agricultural facility by false pretenses. Animal Legal Def. Fund v. Reynolds, No. 19-1364 (8th Cir. Aug. 10, 2021). The court reversed in part a district court ruling that the law violated the First Amendment.

In light of animal activist infiltration of farms and other agricultural operations, the Iowa legislature passed a law in 2012 that made it a crime (a misdemeanor) to commit "agricultural production facility fraud." That crime could be committed in two ways: (1) by obtaining access to an agricultural production facility by false pretenses (the Access Provision); or (2) by making a false statement as part of an employment application to an agricultural production facility if the person knows the statement is false and makes it with an intent to commit an act not authorized by the owner (the Employment Provision). Iowa Code ' 717A.3A(1)(a)-(b).

This measure was characterized as an "ag gag" law by its detractors on the ground that it allegedly penalizes free speech on animal abuse issues. But it was seen by its supporters as an appropriate response to the animal rights activist tactic of either trespassing on farmland or obtaining employment at a farm with false statements and then secretly videotaping or otherwise exposing what the advocates claim is inhumane treatment of farm animals.

Plaintiffs, which included the animal rights groups Animal Legal Defense Fund (ALDF) and People for the Ethical Treatment of Animals (PETA), sued claiming that the law violated their First Amendment rights. The district court agreed and enjoined enforcement of the law. A three-judge paned of the Eighth Circuit reversed as to the Access Provision but affirmed as to the Employment Provision.

The Access Provision did not violate the First Amendment because it proscribes using false statements to obtain access to private property. The court examined the leading Supreme Court case on whether the First Amendment protects false statements ' the so-called "stolen valor" case of United States v. Alvarez, 567 U.S. 709 (2012) ' but found the plurality opinion in that case to be inconclusive. Nonetheless, the Eighth Circuit concluded that, in light of Alvarez, "intentionally false speech undertaken to accomplish a legally cognizable harm may be proscribed without violating the First Amendment." Slip op. at 7. In this...