For the conservative Eighth Circuit, lying to gain access to the property on the premise that animal abuse might be occurring does not cut it as First Amendment-protected speech.

A three-member panel on Aug. 10 overturned a district court ruling that found an Iowa “ag-gag” law violated the First Amendment. Judge Steven Colloton wrote the majority opinion, which was joined in part by Judges L. Steven Grasz and Ray Gruender.

Iowa’s “ag-gag” law makes it a criminal offense to obtain entry to agricultural properties by fraudulent means, known as the access provision. Facility fraud might also occur if access is achieved by lying on an employment application, known as the employment provision.

The Eight Circuit Court of Appeals majority found the Employment Provision to be unconstitutional but suggested a more narrowly drafted statute making false statements explicitly made to get a job might pass muster. The panel found the existing language too broad because it could penalize false statements not related to offers of employment.

The Eighth Circuit has upheld Iowa’s Access Provision, finding no violation of the First Amendment. Judge Colloton wrote that “intentionally false speech” undertaken for legal purposes may be proscribed without violating the First Amendment.

The Eighth Circuit ruling on the Iowa statute is a big win for animal agriculture. Since first adopting an “ag-gag” law in 2012, the Iowa Legislature has re-written its regulation at least once before in response to court rulings.

The Animal Legal Defense Fund, Iowa Citizens for Community Improvement, Bailing Out Benji, People for the Ethical Treatment of Animals, and the Center for Food Safety are plaintiffs in action. They sued Iowa Gov. Kimberly Reynolds, Attorney General Tom Miller, and Montgomery County State Attorney Drew B. Swanson.

The Access provision and the Employment provision “constitute direct regulations of speech,” says the opinion.

The appellate judges considered the United States v. Alvarez, the so-called Stolen Valor case, finding that the Supreme Court’s decision did not provide any guiding rationale. They did find that false speech is without protection in numerous cases involving “defamation, fraud or some other legally recognizable harm associated with a false statement.”

The judges found the Access provision “is consistent with the First Amendment because it prohibits exclusively lies associated with legally cognizable harm — namely, trespass to private property. We agree with this conclusion.”  As for the Employment provision, the three-judge panel found it wanting but suggested a cure.

“We may assume for the sake of analysis that a narrowly tailored statute aimed at preventing false claims to secure offers of employment would pass constitutional muster,” the opinion says. As the district court observed, however, the Iowa statute sweeps more broadly.”

The Eighth Circuit agrees that the Employment provision “does not satisfy strict scrutiny.”

The bottom line is the Circuit revered the district court judgment declaring the Iowa statute entirely unconstitutional and vacates the injunction against enforcement and remands it for further proceedings.

Judge Grasz said he was “hesitantly” going along with the Access provision in his concurring opinion.

“The court’s opinion today represents the first time any circuit court has upheld such a provision,” Grasz wrote. “At this time in history, when a cloud of censorship appears to be descending, along with palpable public fear of being ‘canceled’ for holding ‘incorrect’ views, it concerns me to see a new category of speech that the government can punish through criminal prosecution.”

Grasz was appointed to the Circuit by President Donald Trump. President George W. Bush named Judges Colloton and Gruender to the bench.

Gruender explains why he thinks both the Access provision and the employment provision are constitutional in his concurring opinion.

The court decision overturned in part by this case was decided on Feb. 15, 2019, by James E. Gritzner, in the Southern Iowa District.

After 2010, animal agriculture interests began crafting state laws that used criminal statutes to ban photography and recordings on farms, New York Times writer Mark Bittman labeled the laws as “ag-gag” for their limits on whistleblowers and undercover investigators.

In short order, several states adopted “ag-gag” laws, including Idaho, Iowa, North Carolina, Utah, and Arkansas. Led by the Animal Legal Defense Fund, challenges came quickly to the laws for their limits on First Amendment rights.

Until now, ALDF has largely prevailed, although drafters of the laws have changed tactics. Later states, like Arkansas, used civil rather than criminal law.

Three states led by Kansas had adopted similar laws in 1990. Kansas withdrew its law in 2019 for violating First Amendment rights.

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