Court strikes down Iowa’s second ‘ag-gag’ law as unconstitutional

By: - March 15, 2022 11:49 am

Hogs in a livestock production facility. (Photo by Scott Olson/Getty Images)

Iowa’s second attempt to criminalize unauthorized surveillance inside agricultural facilities has been ruled unconstitutional by a federal judge.

“Iowa seeks to protect private property rights by singling out for punishment, at least in part, trespassers based on their disfavored viewpoint of agriculture,” U.S. District Judge Stephanie Rose said in her ruling Monday, adding that it’s precisely this intent that other courts have found to be unconstitutional.

“The state of Iowa may not single out individuals for special punishment based on their critical viewpoint of agricultural practices,” Rose ruled. “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. However, the First Amendment does not allow those protections to be based on a violator’s viewpoint.”

Asked whether the state intends to appeal Rose’s ruling, a spokesperson for Iowa Attorney General Tom Miller said Tuesday the office is reviewing the matter “and determining next steps.”

In the past 10 years, Iowa’s state legislators have passed four separate laws intended to discourage activists from obtaining jobs at agricultural facilities for the purpose of conducting undercover investigations into the treatment of animals.

The first such law was ruled unconstitutional in 2019 by U.S. District Judge James Gritzner, who said it was a violation of the First Amendment. That decision was appealed and prompted the Iowa Legislature to enact a second law that attempted to address the issues raised by Gritzner.

The second law was challenged by the Animal Legal Defense Fund, Iowa Citizens for Community Improvement, Bailing Out Benji, People for Ethical Treatment of Animals and the Center for Food Safety. Enforcement of the law was then temporarily blocked by a judge, citing the pending appeal related to Iowa’s first farm trespass law.

In August 2021, a three-judge appellate panel party partially reversed Gritzner on the first law, finding that criminalizing false statements on employment applications was unconstitutional, but criminalizing the act of gaining access to an ag facility through false pretenses was not.

That ruling cleared the way for consideration of the constitutionality of the second trespass law and resulted in Monday’s decision by Judge Rose.

The plaintiffs in the case argued the law discriminated based on viewpoint because it “singles out a specific industry for favoritism and seeks to silent critics of that industry.” The state argued otherwise and said that while some legislators had talked of the need to silence animal rights activists and critics of meatpacking plants, others spoke of the larger need to protect private property and biosecurity.

Rose rejected the state’s argument, noting that “crucially, the stated purposes of the law — private property rights and biosecurity — would also be implicated for deceptive trespassers without the intent to harm the facility … Defendants offer no explanation why the strict biosecurity protocols discussed by some of the legislators are not at risk by a benign or benevolent deceptive trespasser.”

Rose ruled that because the law criminalizes deception to gain access to agricultural facilities, and only for the purpose of causing physical or economic harm, it establishes different standards for animal rights activists and others who might use deception to gain access to facilities for other reasons.

The state, she noted, had argued that Iowa is entitled “to address a specific problem, which the legislature determined to be deceptive trespass by those who seek to cause harm to agricultural facilities. But plaintiffs point out that this is precisely the problem with the law: that it is not intended to address all trespass or resumé fraud at agricultural facilities — only that of individuals like plaintiffs who intend to document certain practices.”’

Also, Rose said, the harm that the law seeks to prohibit stems from the speech, or the publication of information, that grows out of the unprotected, false statements used to gain access to the facility.

The ruling represents a major victory for the plaintiffs as it was issued as part of a summary judgment order, in which the case was decided without the necessity of a trial.

The American Civil Liberties Union of Iowa praised Rose’s decision. ACLU Legal Director Rita Bettis Austen said the law was crafted “to silence critics of worker rights abuses, animal cruelty, unsafe food safety practices, and environmental hazards in agricultural facilities.”

The law, she said, singles out for punishment “speakers critical of big agriculture,” while those who would promote or praise agriculture are protected.

In response to the ruling, Animal Legal Defense Fund Executive Director Stephen Wells said it is “incomprehensible that Iowa legislators continue to waste Iowans’ taxpayer dollars to pass and defend unconstitutional laws that suppress free speech simply to protect their own financial interests. We hope this ruling sends a clear message that the Iowa legislature should cease its efforts to pass unconstitutional ag-gag laws.”

The state is currently defending another lawsuit over its fourth ag trespass law, which was passed by lawmakers last spring.

That lawsuit, filed by the Animal Legal Defense Fund and the other co-plaintiffs to the previous lawsuits, alleges the newest law makes it a crime for a person who trespasses to use cameras or electronic surveillance devices on the trespassed property.

The plaintiffs argue that the new law “seeks to create the gloss of legitimacy by applying to industries beyond agriculture, so that the state can claim its aim is not just to prevent pro-animal speech. And it targets speech alongside other activities, so that the state can claim its real aim is to prohibit conduct, not speech.”

The state has not filed an answer to the complaint, but it has asked the court to dismiss the case on jurisdictional and other grounds. The plaintiffs have countered by asking for summary judgment in their favor. A hearing on those motions has yet to be scheduled.

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Clark Kauffman
Clark Kauffman

Deputy Editor Clark Kauffman has worked during the past 30 years as both an investigative reporter and editorial writer at two of Iowa’s largest newspapers, the Des Moines Register and the Quad-City Times. He has won numerous state and national awards for reporting and editorial writing.