Appeals Court Says Iowa's Ag-Gag Law Is About 50 Percent Constitutional
from the keep-this,-strike-that dept
Opacity efforts backed by industries that would rather not allow the public to see how their food is really made have been mounted in several states, hoping to criminalize things like corporate whistleblowing or investigative journalism. Of course, these legislative efforts generally make no mention of these terms, hiding their true intent behind claims of seeking to protect businesses from “bioterrorism” or “trespassing.”
Ignoring the fact that there are plenty of statutes already capable of addressing terrorist acts and trespassing, these laws have sought to prevent photography of farms or undercover investigators from being hired by unsuspecting farmers.
Iowa’s ag-gag law does at least acknowledge the point is to hide abuse of animals or other questionable business practices from outsiders. Its legislative backers have publicly acknowledged the law is designed to “stop […] groups that […] give the agriculture industry a bad name.” Obviously, this isn’t an acceptable justification for violating people’s First Amendment rights, as the state learned when a federal court declared the law unconstitutional in January 2019.
The state appealed. And it has managed to claw back part of its gag law. The Eighth Circuit Court of Appeals has overturned [PDF] part of the district court’s decision. But it has upheld the other part, which means at least some of the law written to protect agriculture businesses from criticism can’t be enforced.
The Appeals Court says that both challenged provisions affect free speech.
Both the Access Provision and the Employment Provision constitute direct regulations of speech. The Access Provision targets false “pretenses,” Iowa Code § 717A.3A(1)(a), and the Employment Provision targets false “statement[s],” id. § 717A.3A(1)(b). Pretenses may consist of nonverbal conduct, but that conduct constitutes “pretenses” only because it expresses information. “A law directed at the communicative nature of conduct” is treated like “a law directed at speech itself.” Texas v. Johnson, 491 U.S. 397, 406 (1989) (emphasis and internal quotation omitted). Thus, the Access Provision’s regulation of “pretenses,” like the regulation of “statements,” constitutes a direct regulation of speech. Both provisions also target expression for restriction on the basis of its content. Each prohibits expression that is “false,” and an observer must examine the content of the speech to determine whether it is prohibited.
False statements can still be protected speech. But in this case, some statements are not protectable if they’re used to further another civil or criminal violation.
We consider first the Access Provision, which provides that a person is guilty of agricultural production facility fraud if he “obtains access to an agricultural production facility by false pretenses.” Iowa Code § 717A.3A(1)(a). The State argues that this provision is consistent with the First Amendment because it prohibits exclusively lies associated with a legally cognizable harm—namely, trespass to private property. We agree with this conclusion.
This determination may be correct, but that doesn’t make the law any less extraneous. The state already has laws on the books criminalizing trespassing and allowing private citizens to refuse access to their property. Given that fact, it would seem the state already gives ag businesses a way to handle this problem — one that doesn’t criminalize false statements and (possibly) tread a little heavily on the First Amendment.
The Appeals Court finds the other provision unconstitutional, though. There’s a way to handle falsehoods related to securing goods (in this case, employment) but Iowa’s law is far too broad.
The proscription of the Employment Provision does not require that false statements made as part of an employment application be material to the employment decision. As such, the statute is not limited to false claims that are made “to secure” an offer of employment; it allows for prosecution of those who make false statements that are not capable of influencing an offer of employment. Plausible scenarios abound: 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.
Given the breadth of the Employment Provision, it proscribes speech that is protected by the First Amendment and does not satisfy strict scrutiny. Insofar as the State has a compelling interest in preventing false statements made to secure offers of employment, a prohibition on immaterial falsehoods is not actually necessary to achieve the interest. There is a less restrictive means available: proscribe only false statements that are material to a hiring decision.
This means the state will need to repeal and rewrite this portion of its ag-gag law. And that means the law will be a little less useful to the industry lobbyists who have pushed to criminalize the acts of journalists and activists who seek to expose unsavory practices. But the decision also creates a roadmap for legislators to use to shut down enemies of their deep-pocketed friends.