In the last month, there have been three appellate court opinions related to “ag gag” statutes in states around the country. Although they differ in detail, “ag gag” statutes essentially make it illegal to gain access to agricultural operations in order to photograph or record agricultural operations without consent. They target both unauthorized access such as trespass, but also frequently prohibit providing false information, such as on an employment application, to gain access to the facility.
Here is a brief summary of those recent decisions. For a more detailed explanation of each, be sure to read the opinions linked below. Also, keep in mind, there may be petitions for certiorari filed with the United States Supreme Court in any of these cases.
Kansas has the oldest “ag gag” statute in the country. The Kansas’ “Farm Animal and Field Crop and Research Facilities Protection Act” states that entering an animal facility and taking photos or recording videos of the animal facility “without the effective consent of the owner and with the intent to damage the enterprise” is a criminal offense. Further, if the consent is obtained through deception, such as lying about a person’s identity, it is not effective consent.
In 2018, several groups, led by the Animal Legal Defense Fund filed suit challenging the constitutionality of the statute, claiming that the law violated the First Amendment. [Read Complaint here.] The trial court sided with the plaintiffs, finding that three portions of the statute unconstitutional and issuing a permanent injunction against enforcement of these sections. [Read Order here.] Kansas appealed to the United States Court of Appeals for the Tenth Circuit.
On August 19, 2021, the Tenth Circuit affirmed. The court found that the prohibited acts did constitute “speech,” rejecting Kansas’ argument that the law applied only to conduct. Additionally, they found it to be viewpoint discriminatory as it only applies to people who intend to damage the facility. It is not equally applicable, for example, to someone who wanted to record with some other intention. Because of this viewpoint discriminatory approach, the state would be required to meet strict scrutiny in order for the statute to be constitutional. This means Kansas would have to show that the statute was narrowly written to address a compelling state interest. The court found that the state did not attempt to do so. Therefore, the statute is unconstitutional.
Judge Hartz issued a dissenting opinion. He believes the statute is constitutional, because the authority of an owner to control who can be on his property is a fundamental property right, and this statute merely prohibits a person from lying to gain access to property. This would result in a cognizable harm–invasion of privacy–to the owner. Further, he believes the statute is actually viewpoint neutral because the statute prohibits lying to gain access with the intent to damage the enterprise. What is prohibited is any false speech, whether pro or con towards the ag facility itself. This, he reasons, makes the statute content neutral.
Iowa’s Agricultural production facility fraud statute, passed in 2012, made it a criminal offense to access an agricultural production facility by false pretenses (“the access provision”) and criminalized making false statements in an employment application to an agricultural production facility with the intent to commit an unauthorized act (“the employment application provision”). A number of groups, again led by the Animal Legal Defense Fund, filed suit challenging the constitutionality of the statute. The US District Court for the Southern District of Iowa found the statute unconstitutional in 2019. [Read Order here.] In particular, the court found the statute to be a content-based law and found that it met neither intermediate nor strict scrutiny.
Iowa appealed to the United States Court of Appeals for the Eighth Circuit. On August 10, 2021, the Eighth Circuit affirmed in part and reversed in part. [Read Opinion here.] Specifically, the court held that the access provision did not violate the First Amendment, but found that the employment application provision did.
In considering the access provision, the court found that this statute prohibited only lies with associated with legally cognizable harm. Thus, the First Amendment did not protect this type of speech. Although the statute did not require property damage, there was damage to an owner’s right to privacy and right to exclude when a person lied in order to access the property.
The court then turned to the employment application provision. The court found that this language proscribes speech that is protected by the First Amendment and does not withstand strict scrutiny. Even if the state did have a compelling interest in preventing false statements in employment applications, a prohibition on all falsehoods, including those that are immaterial, is not necessary to satisfy the interest. Instead, there was a less restrictive means available–prohibiting only false statements that are material to the hiring decision.
Judge Grasz issued a concurring opinion. The judge joined the opinion, but said that he did so “hesitantly as to the Access Provision” because it was the first time any federal court upheld this type of provision. He then noted, “ultimately, the Supreme Court will have to determine whether such laws can be sustained, or whether they infringe on the ‘breathing room’ necessary to effectuate the promise of the First Amendment.”
Judge Gruender concurred in part and dissented in part. He agreed that the access provision did not violate the First Amendment. However, he disagreed that the employment application provision was unconstitutional. Thus, he would have upheld both provisions.
Do note that there have been additional statutory provisions passed in Iowa that have been separately challenged that are beyond the scope of this overview.
The Arkansas statute is written differently than those in Kansas and Iowa. Under AR Code Section 16-118-113, passed in 2019, there is a civil cause of action available if a person knowingly gains access without permission to nonpublic areas of a business, agricultural operation, or residential property used for business. The owners may bring suit and seek damages including monetary damage, injunctions, and attorney’s fees.
When several groups, again led by the Animal Legal Defense Fund, sought to investigate a sow operation owned by a state Representative who sponsored this bill and a slaughter plant, they sought that the owners waive their rights to sue under 16-118-113. The owners refused to do so. Because of that, the plaintiffs sought a declaratory judgment that the statue violates their First Amendment rights. In February 2020, a federal trial court dismissed the lawsuit without reaching the merits, finding instead that the plaintiffs lacked standing to bring the suit. [Read Opinion here.] The Plaintiffs appealed to the United States Court of Appeals for the Eighth Circuit.
On August 9, 2021, the Eighth Circuit issued an opinion reversing the trial court, finding that the plaintiffs did, in fact, have standing to challenge the statute. [Read Opinion here.] The court addressed the three requirements to show standing: (1) injury in fact; (2) causal relationship between the injury and challenged conduct; and (3) a favorable decision would likely redress the injury.
First, but for the statute, ALDF would send an investigator to obtain information, photos, and videos of the farm to disseminate. The court found this to be “arguably affected with a constitutional interest” because the creation and dissemination of information are considered speech under the First Amendment.
Second, ALDF retained an investigator who would apply for a job, gather information in nonpublic areas, and that information would then be disseminated to others by ALDF. Thus, they allege an intention to engage in conduct arguably prohibited by the statute.
Third, the complaint alleges “a credible threat of enforcement.” The owners claimed there was no credible threat that they would enforce the statute because the investigator would not find it worthwhile to inspect their facilities because there is no improper activity occurring. However, the complaint alleged that given the number of hogs and the size of the farm, it is likely pigs are confined in unmovable quarters, the fact that one of the owners was also the sponsor of the bill raises questions about his desire to conceal activity, and the existence of slaughter lines using a live hang method led to an interest in the public knowing how the businesses operate. If true, the court reasoned, this showed an intent to record the conditions and disseminate the results.
Next, the court rejected the defendants’ argument that they had made no credible threat of filing suit under the statute. A formal threat is not required, however, only an “objectively reasonable fear” of legal action is necessary. This standard was met, the court ruled, because the parties would not waive their rights to sue. Thus, the case was remanded back to the trial court to proceed to the merits.
Judge Shepherd dissented. He would have sided with the owners because the plaintiffs “are not yet, and may never be, in a position to engage in the course of conduct actually proscribed” by the statute. He wrote that the plaintiffs’ fears “are currently nothing more than the product of their own imagination and thus are insufficient to constitute an injury in fact.”
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