Appeals court reinstates two Iowa 'ag-gag' laws criminalizing trespass on hog farms

Iowa Republicans scored a big win in their yearslong battle with animal rights group as a federal appeals court reversed prior decisions striking down two state laws aimed at activists who target livestock feedlots and other agribusinesses to expose alleged animal abuses.

Iowa has passed four laws, described by critics as "ag-gag" laws, in the past 12 years, seeking to criminalize activists' efforts to gain access to and record video footage of the alleged animal abuses by Iowa pork producers. The first, second and fourth laws had been struck down by courts as unconstitutional. The third law has been upheld in court.

But on Monday, the Eighth U.S. Circuit Court of Appeals overturned the orders staying the second and fourth laws. The separate decisions hold that the laws ― forbidding use of a camera while trespassing and prohibiting lying on employment applications to gain access to such facilities as an employee ― are not unconstitutional restrictions of free speech.

Gov. Kim Reynolds' office did not respond Monday to a request for comment. Attorney General Brenna Bird in a statement said the decisions are "a landmark victory for Iowa farmers and property owners."

Attorney Caitlin Foley from Animal Legal Defense Fund, the lead plaintiff in both lawsuits, said in a statement that the group is "disappointed by the Eighth Circuit’s decisions today that support secrecy in industrial agriculture."

What do the laws do?

The first of the Iowa laws, passed in 2012, sought to criminalize using deception to gain access to agricultural facilities, including lying on job applications. A previous appellate decision found that the employment portion of the law violated the First Amendment because it covered potentially "immaterial fibs" about an applicant's background.

While that law was tied up in litigation, legislators passed a second one in 2019 seeking to address those concerns by limiting the law to job application deceptions "likely to result in a denial" of employment, and to deceptions made "with the intent to cause physical or economic harm" to the business. A district court found both provisions violated the First Amendment by discriminating based on speakers' negative views of the facilities and again blocked the state from enforcing it.

After passing a third law, criminalizing "food operation trespass," in 2020, legislators passed a fourth law in 2021, this time creating enhanced penalties for trespassing if the defendant "places or uses a camera" on the property. This law too was struck down by a district judge, who reasoned that Iowa already had laws in place barring peeping Tom behavior and similar misconduct, and that the new law was not "narrowly tailored to achieve a substantial state interest."

What the courts said Monday

The two decisions issued Monday, both by the same three-judge appellate panel, reverse the court orders blocking the second and fourth laws from taking effect.

In upholding the 2019 law, the court found that the state is allowed to criminalize acts based on their motivation. Judge Steven Colloton compared the law targeting those intending harm to facilities to laws criminalizing threats against abortion providers.

"In our view, the Iowa statute is not a viewpoint-based restriction on speech, but rather a permissible restriction onintentionally false speech undertaken to accomplish a legally cognizable harm," he wrote.

Foley, the Animal Legal Defense Fund attorney, said in a statement the decision undermines activists' ability to shed light on issues of animal cruelty, food safety and workers' rights, and argued the court's position is out of step from other federal circuit courts that have ruled against similar laws elsewhere around the country.

Regarding the 2021 law, the judges found that protecting property and privacy rights is a substantial state interest, and that prohibiting camera use by trespassers reasonably furthered that interest.

"Trespassing ... harms the privacy and property interests of property owners and other lawfully-present persons. Trespassers exacerbate that harm when they use a camera while committing their crime," Judge Steven Grasz wrote. "The act is tailored to target that harm and redress that evil."

The court also found that, while the law addresses a trespasser who "uses or places" a camera, the animal rights groups who sued had only expressed their desire to carry and use cameras, and therefore no plaintiff had standing to challenge the prohibition on placing a camera.

Although the court ruled the law is not unconstitutional on its face, Foley said Animal Legal Defense Fund will continue litigating whether it is unconstitutional as applied — that is, whether a law that is neutral on paper is being used to unfairly target the speech of animal rights organizations.

Both decisions return the cases to the district court level for further proceedings. With ALDF promising to continue fighting against the 2021 law, it is not clear what the next steps will be in court, or when the laws will be able to take effect.

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.

This article originally appeared on Des Moines Register: Iowa agricultural trespass laws constitutional, appeal court says