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.

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Filed Under: 1st amendment, 8th circuit, ag-gag, free speech, iowa, protests

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  1. icon
    Toom1275 (profile), 18 Aug 2021 @ 11:38am

    Typical Techdirt, always opposing corporate censorship wherever it exists.

    reply to this | link to this | view in thread ]

  2. identicon
    Anonymous Coward, 18 Aug 2021 @ 12:42pm

    how the hell can anyone arrive at that conclusion? it's either Constitutional or it isn't! there cant be any half measures with something as important as this! but, like so many laws in the USA now, they are either being changed, rewritten or intorduced as a new law, all of which being to the benefit of industry and, more importantly, to the detriment of the people! the Constitution is meant to be the document that everything USA is held and judged by. stop keep erroding it or throw the whole fucking thing out! the aim, as with so many other countries, is to screw the people, enslave the public while making life, power and wealth increases for the elite!

    reply to this | link to this | view in thread ]

  3. icon
    ECA (profile), 18 Aug 2021 @ 1:05pm


    And you dont care how you food is manipulated and processed?
    How corps make the food you eat and charge so much for Garbage?

    Go out and find a REAL chicken, and cook it. You will be amazed at the diff. in taste.

    Milk? is strange, as by the time it gets to the store is over 1/2 water. they have taken everything that makes Milk, Milk.

    reply to this | link to this | view in thread ]

  4. icon
    That Anonymous Coward (profile), 18 Aug 2021 @ 1:53pm

    Now hear me out, I have a really simple solution...

    How about they pass some laws to make sure that the ag corporations don't mistreat workers or animals then fund it with real inspectors??

    I mean if there were actually penalties for companies abusing animals or using obviously sick ones they'd stop and stuff right?

    Of course being everyones favorite sociopath in the alternative how about we just force Iowa's legislators to eat every recalled product until they decide that the big ag donations aren't worth the lives they are taking by cutting corners.

    reply to this | link to this | view in thread ]

  5. identicon
    Pixelation, 18 Aug 2021 @ 2:29pm

    Is that anything like 50% pregnant?

    reply to this | link to this | view in thread ]

  6. icon
    R.H. (profile), 18 Aug 2021 @ 3:08pm

    Re: Re:

    Whole milk is already 87% water. Most liquids ingested by humans to quench our thirst are mostly water. Even if you're just talking about milkfat, whole milk is ~3.5% milkfat and the other varieties go down from there.

    Most of the differences in chicken raised for meat are related to their size. Chickens that are raised for meat are bred to grow fast and large. It has been illegal for years to provide antibiotics to chickens in the US so that's not the issue. I've had non-factory farmed chicken before, other than the price, I didn't notice much of a difference.

    reply to this | link to this | view in thread ]

  7. identicon
    Anonymous Coward, 18 Aug 2021 @ 3:10pm

    Its legislative backers have publicly acknowledged the law is designed to "stop [...] groups that [...] give the agriculture industry a bad name."

    Well, I mean, that is how they think. The people actually committing the bad acts aren't to blame, it's those horrible whistleblowers.

    It's just Ed Snowden giving the NSA a bad name.
    It's just concerned citizens and their cellphones giving violent cops a bad name.

    reply to this | link to this | view in thread ]

  8. identicon
    Anonymous Coward, 18 Aug 2021 @ 7:19pm


    you didn't actually read any but the headline, and then make a ridiculous assumption. right?

    reply to this | link to this | view in thread ]

  9. identicon
    Anonymous Coward, 18 Aug 2021 @ 7:22pm


    This bacon is now 50% more Constitutional! It's packed with sweet, sweet Constitutional flavour. So shut up, you. That's private talk for between a man and his property.

    reply to this | link to this | view in thread ]

  10. icon
    Tanner Andrews (profile), 19 Aug 2021 @ 5:53am

    Re: Re: Re:

    whole milk is ~3.5% milkfat

    Whole milk from cows has a much higher milkfat content. Even with some of the good stuff skimmed off, ``whole milk'' in the grocery is supposed to be 4% milkfat.

    It is also cooked, which affects the flavor but is intended as a health and safety measure. In many states, uncooked milk is barred from retail sale. When I was in undergrad, a group of us would take turns driving across the state line to purchase uncooked whole milk from farms.

    reply to this | link to this | view in thread ]

  11. identicon
    beleester, 19 Aug 2021 @ 6:50am


    No, it's like getting 50% of the questions right on a test. The law has two provisions, and the court said one was constitutional and the other wasn't.

    reply to this | link to this | view in thread ]

  12. icon
    nasch (profile), 19 Aug 2021 @ 1:38pm

    Re: Re: Re: Re:

    Reference for any of the fat content claims? I can find nothing indicating whole milk is any more than 3.25 - 3.5% fat.

    reply to this | link to this | view in thread ]

  13. identicon
    Anonymous Coward, 19 Aug 2021 @ 7:43pm

    Re: Re: Re: Re: Re:

    This is a "whole milk = milk straight from a cow" conflation.

    reply to this | link to this | view in thread ]

  14. icon
    nasch (profile), 19 Aug 2021 @ 9:47pm

    Re: Re: Re: Re: Re: Re:

    Not at all. Whole milk is milk that has not had any fat skimmed off, whether it's straight from a cow or it's had something else done to it. As I said, I have not found any reference that any whole milk ever contains more than 3.5% fat, let alone the "much higher" fat content claimed above. Nor any indication that the pasteurized whole milk commonly found in grocery stores has a lower fat content than raw milk. I welcome any such references anyone can supply.

    reply to this | link to this | view in thread ]

  15. icon
    Tanner Andrews (profile), 28 Aug 2021 @ 11:54pm

    Re: Re: Re: Re: Re:

    You are right as to the published standards; whole milk is now only required to be 3.25% to be sold as such. But real product as it comes from a cow has undergone three steps which make this misleading:

    1. separation of fat, called ``skimming''
    2. thorough blending, called ``homogenization''
    3. cooking, called ``pasteurization''

    Many vendors add back the minimum 3.25% after separation in order to have a standardized product which meets requirements. Some indeed still target 4%. In some states, if you know someone you can get the real product as it comes from the cow, though it is sufficiently illegal here that the product is costly.

    reply to this | link to this | view in thread ]

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