Iowa Ag Gag Law Update

• Published date: 19 August 2021
• Subject Matter: Real Estate and Construction, Land Law & Agriculture
• Law Firm: Husch Blackwell LLP
• Author: Mark G. Arnold

We have previously blogged about ag-gag laws in general and the Iowa law in particular, the last post about Iowa being on January 3, 2020. Animal rights groups such a People for the Ethical Treatment of Animals (PETA) or the Animal Legal Defense Fund (ALDF) conduct undercover investigations of farm and ranch properties to uncover incidents of animal abuse. They often gain access to the property by subterfuge, such as applying for employment without disclosing their true motive.

Farmers and ranchers understandably dislike these kinds of exposures and, in rural states where they enjoy political power, they have persuaded many state legislatures to forbid the practice in some form or another. These statutes raise serious First Amendment issues.

As we reported in the January 3 post, the District Court held that much of the Iowa ag gag law was unconstitutional. On August 10, 2021, in a badly fractured set of opinions, the Eighth Circuit affirmed the judgment in part and reversed it in part. Animal Legal Defense Fund v. Reynolds, 2021 WL 3504493 (8^th Cir. 2021).

The Court upheld the section of the statute that prohibited gaining access to agricultural production facilities by false pretenses (the access provision). The Court held that this section merely banned trespass to private property, a legally cognizable harm. It is well settled that consent obtained by fraud is no consent at all.

The principal Supreme Court authority on the issue is United States v. Alvarez. Alvarez claimed that he was a retired Marine who had been awarded the Congressional Medal of Honor. Neither claim was true, and the government prosecuted him under the Stolen Valor Act. By a 6-3 vote, a fractured Supreme Court held that the statute violated the First Amendment.

The problem was that the justices in the majority could not agree on a rationale. The four-justice plurality held that any attempt to ban false statements required strict scrutiny. The plurality agreed that the Government had a compelling interest in preventing false claims to medals, but it held that the ridicule incident to exposure of the lie was sufficient to vindicate it. For the plurality, the ancient maxim applies: the remedy for bad speech is more speech. The only exception to First Amendment scrutiny is cases involving "legally cognizable harm associated with a false statement."

The two-justice concurring opinion applied intermediate scrutiny, based on the theory that the truth or falsity of any such statement could...