Iowa's second 'ag-gag' law violates First Amendment, federal court rules
William MorrisSeven months after a divided federal appeals court partially upheld the first of Iowa's "ag-gag" laws, a judge has ruled the state's second such law is unconstitutional.
Monday's decision by U.S. District Judge Stephanie Rose means that Iowa Code section 717A.3B, which was temporarily blocked by a different judge in 2019, will remain unenforceable. The case had been on hold while the 8th U.S. Circuit Court of Appeals considered a challenge to an earlier version of the law.
Iowa has passed four laws since 2012 in response to animal rights activists who have worked to publish video and images from inside large livestock facilities, sometimes infiltrating them by getting themselves hired on as employees.
The laws created criminal offenses for anyone who "obtains access to an agricultural production facility by false pretenses" or "makes a false statement or representation" in the course of an employment application if the person intends to commit any unauthorized actions, such as videotaping, once hired.
Where does this decision fit into Iowa's multiple ag-gag laws?
The first, second and fourth laws have been challenged in court by a coalition of groups including the Animal Legal Defense Fund and Iowa Citizens for Community Improvement. In 2019, Judge James Gritzner ruled the first law violated the First Amendment.
In August 2021, a three-judge appellate panel party reversed that decision in part. The court agreed that the law was unconstitutional in criminalizing false statements on employment applications, but ruled that a provision criminalizing "obtain(ing) access to an agricultural production facility by false pretenses" should stand.
While that case was pending, the legislature passed a second law seeking to address some of the court's faults with the first, and the same plaintiffs sued to block that law, as well. Monday's decision addresses that law, and finds that, even taking into account the 8th Circuit decision on the first law, the second law should be struck down.
Another lawsuit, filed in August, is still pending against Iowa's fourth law, passed in April 2021. The third law has not yet been challenged in civil court, although a judge did find it constitutional in a criminal case in Wright County.
Judge: Law impermissibly punishes based on trespasser's viewpoint
In partially upholding the first law, the 8th Circuit found that false speech is not protected by the First Amendment if it enables a trespass. Under that standard, Rose ruled Monday, the second law still doesn't pass constitutional muster.
By criminalizing deception to gain access to an agricultural facility "with the intent to cause physical or economic harm," it impermissibly distinguishes between animal rights activists and others who might lie to gain access to facilities for other reasons, Rose ruled.
"Simply because speech is unprotected does not grant a free license for the government to regulate that speech based on viewpoint," she wrote, finding that "the law seeks to single out specific individuals for punishment based on their viewpoint regarding such facilities."
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While the 8th Circuit ruled the first law was permissible in seeking to criminalize false statements to gain entry to a facility, the second law "differs because among the harm it seeks to prohibit is 'the subsequent speech' following the unprotected (false) speech," she said.
"It is the proper province of the legislature to determine whether specific facilities — such as agricultural facilities, nuclear power plants, military bases, or other sensitive buildings — are entitled to special legal protections," Rose wrote. "However, the First Amendment does not allow those protections to be based on a violator’s viewpoint."
Rose has asked the parties to weigh in on the scope of a permanent injunction blocking the law, which will be issued at a later date.
ACLU: Law caused 'grievous harm to our democracy'
The plaintiffs challenging the laws have been represented in court by the American Civil Liberties Union of Iowa, and ACLU Legal Director Rita Bettis Austen praised Monday's ruling.
"This important decision finds that Iowa's Ag Gag 2.0 law violates the First Amendment because it discriminates based on the viewpoint of the speaker," Austen said in a statement. "Speakers critical of big agriculture are singled out for punishment, while those who would promote or praise it are protected, and this cannot survive strict scrutiny."
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"An especially grievous harm to our democracy occurs when the government uses the power of the criminal laws to target unpopular speech to protect those with power—which is exactly what this law is about," she said. "The Ag Gag 2.0 law aims to silence critics of worker rights abuses, animal cruelty, unsafe food safety practices, and environmental hazards in agricultural facilities."
Circuit courts split on how laws should be interpreted
Eldon McAfee, an attorney for the Iowa Pork Producers Association, said Iowa's first, third and fourth laws are still in effect and criminalize trespassing in agricultural facilities under false pretenses. What Iowa doesn't have, and what the association has advocated for, is a provision making it illegal to use false pretenses to gain employment in such a facility.
The legislature has been "walking a fine line" in writing the statutes, in part because courts in different parts of the country have disagreed on key constitutional questions, McAfee said. When Gritzner struck down the first law, he did so in part because the law was overbroad, and compared it to an Idaho law, upheld by the Ninth Circuit, that required defendants have an intent to cause economic harm.
"So the Legislature in 2019 then passed this law, that has the intent to cause economic harm element to it, after seeing the court strike the first one down because it was too broad," McAfee said. "Now this court is saying very strongly that this law is too narrow, too targeted, aimed at the plaintiffs in this case."
That's because Rose's decision draws primarily from a 2021 decision from the 10th Circuit striking down a Kansas law, instead of the Idaho case.
"We have differing decisions from different courts," McAfee said. "This court followed the 10th Circuit decision instead of the Ninth Circuit decision, and we don’t have a decision yet (about the intent to cause economic harm question) from the Eighth Circuit."
The state could appeal Monday's decision, as it did for the first law. Gov. Kim Reynolds' office did not respond to a message seeking comment. A spokesperson for the Iowa Attorney General's Office said it is reviewing the decision and possible next steps.
William Morris covers courts for the Des Moines Register. He can be contacted at wrmorris2@registermedia.com, 715-573-8166 or on Twitter at @DMRMorris.