Federal Court Rules on Iowa and Arkansas "Ag Gag" Laws

The First Amendment does not protect all speech. A federal appeals court just ruled it does not give a person the right to gain access to a farm by “false pretenses.” On the other hand, the court held that the First Amendment does protect certain false statements made as part of an employment application.

Iowa, like many other states, has passed numerous statutes designed to protect livestock farms against undercover activists. The laws are intended to protect the employees and animals on these farms against people who use trickery or deceit to gain access to the farms. Sometimes people lie on an employment application or elsewhere to enter a farm and take undercover video which will be posted online as a purported piece of evidence showing supposed animal abuse at a farm. The videos are often taken out of context and heavily edited or even completed doctored to distort the real circumstances at a farm. Activists also may attempt to abscond with livestock or do other harm to the farm. The “ag gag” laws are an attempt to prevent this dishonest behavior.

These laws are frequently challenged by animal rights groups. Many courts have held that various versions of such laws are unconstitutional because they constitute a violation of the right to free speech under the First Amendment. However, in early August 2021, the Eighth Circuit Court of Appeals (covering Iowa, Arkansas, Minnesota, Missouri, and the Dakotas) refused to strike down such a law from Iowa.

Eighth Circuit image from Wikipedia

The statute (called the Agricultural Production Facility Fraud law) made it a misdemeanor to access agricultural production facilities by false pretenses or make false statements as part of an employment application to an agricultural production. The court called these the “Access Provision” and the “Employment Provision” and I’ll do the same here.

The court compared the Iowa law to the Stolen Valor law which made it illegal to falsely represent that you had been awarded a military medal. The Supreme Court struck down the Stolen Valor law for violating the First Amendment because a lie about military service, without more, does not actually harm anyone.

In the Iowa case, the court explained that unlike the Stolen Valor law, the Access Provision prohibits exclusively lies associated with a legally cognizable harm—namely, trespass to private property. The court concluded that intentionally false speech undertaken to accomplish a legally cognizable harm may be forbidden without violating the First Amendment. The right to exclude someone is one of the most treasured and historic rights of property ownership. The court concluded the Access Provision did not violate the First Amendment.

On the other hand, the court struck down the Employment Provision. The court recognized that in general, a narrowly tailored statute aimed at preventing false claims to secure offers of employment would pass constitutional muster. However, the Iowa Employment Provision was too broad on its face. The proscription was not limited to false statements that were material. The court offered potential situations that would presumably violate the law: the applicant falsely professes to maintain a wardrobe like the interviewer's, exaggerates her exercise routine, or inflates his past attendance at the hometown football stadium. The court, therefore, held the Employment Provision violated the First Amendment.

One judge wrote the opinion; one concurred in full but expressed concern that this would lead to people being “cancelled” for unpopular views, and one concurred in part and dissented in part because he would have upheld both parts of the law.

Less than a week before, the Eighth Circuit revived a challenge to an Arkansas “ag law” law which authorized farms to sue for damages if an undercover investigator surreptitiously records operations and shares the information in a way that harms the business. In the Arkansas case, the federal trial court had dismissed the lawsuit challenging the statute as premature, since the plaintiffs had not suffered any actual or threatened harm. The Eighth Circuit reversed that court and ruled that “a plaintiff need not expose itself to liability in order to show an injury…and the statute’s deterrent effect on the investigations is sufficient to establish an injury.”

What is the takeaway for livestock farmers or legislators in states other than Arkansas or Iowa? The Eighth Circuit, at least, has laid out a roadmap for what a constitutional law forbidding lying on an employment application for a livestock farm would look like: the key (at least to that court) would be that the lie must be “material.” Will other legislatures use this as an outline for new laws? It remains to be seen—and the odds are we will continue to see varying decisions from courts across the country on this divisive issue. Stay tuned!