State laws limiting photography or recordings on agricultural operations without the consent of the owner are commonly called “ag-gag” or “farm security” laws. They became a popular response to numerous releases of undercover videos taken and published, by animal activists. However, many of the statutes have been challenged and court rulings have shaped the conversation. Within the past several weeks, three courts have handed down rulings on challenges to the currently existing laws in the states of Arkansas, Iowa, and Kansas. This article will outline the background of each state’s law and the lawsuits that led up to the ruling, as well as an overview of the ruling itself.
A fairly unique feature of Arkansas’ statute is that it is civil, not criminal. Ark. Code Ann. § 16-118-113 applies to businesses, ag operations and residential property used for business purposes, and because it is a civil offense, the land and business owners would be the ones bringing suit to enforce the law. §16-118-113 imposes liability for knowingly gaining access to nonpublic areas and engaging in acts for which permission has not been given. Penalties include potential injunctions, attorney’s fees and damages for any identifiable losses. If a monetary amount cannot be identified for losses, a court may award damages “commensurate with the harm caused”, up to $5,000 for each day in violation.
In June 2019, several interest groups filed suit to against Jonathan and Deann Vaught, who operate a farrowing sow facility in Horatio Arkansas, as well as against Peco Foods, Inc, a company with several slaughter and processing facilities in Arkansas. The interest groups claimed an interest in investigating both Prayer Creek Farm and the Peco facilities in Arkansas, and asserted that they had retained an investigator to do so. However, they were prevented from following through by the thought of a potential lawsuit against them. As a result, they sought an injunction preventing the defendants from enforcing Arkansas’ law on First Amendment grounds.
In February, 2020, the District Court issued its ruling. It did not address the First Amendment claims, but instead dismissed the lawsuit because the plaintiffs did not have standing. The requirements for standing are meant to prevent plaintiffs from bringing hypothetical cases. So, because the plaintiffs did not establish that they had actually been injured by the law, they did not meet the foundational requirements necessary to bring the lawsuit. The plaintiffs immediately appealed the decision to the Eighth Circuit Court of Appeals
On August 9, 2021, the Eighth Circuit reversed the District Court ruling, finding that the plaintiffs had indeed met the requirements for establishing standing. The ruling was based on the holding that an “allegation of future injury may suffice if the threatened injury is ‘certainly impending,’ or there is a ‘substantial risk that the harm will occur.’” Because the plaintiffs had planned to investigate both facilities and had retained an investigator, the harm was immediate enough to meet the threshold for standing.
The Eighth Circuit sent it back to the District Court in Arkansas for further proceedings. It is important to note that the Eighth Circuit ruling does not say that the Arkansas law is constitutional, that it does or does not violate free speech protections, or that it should or should not be enforceable. It only tells the District Court that it has the ability to hear the case that was filed.
The earliest state law passed on this topic, Kansas’ statute is found at Kansas Statutes Ann. §§47-1825 to -1828. It made it a criminal offense to take pictures or record videos of animal agriculture “without the effective consent of the owner and with the intent to damage the enterprise.” A lawsuit challenging is constitutionality was filed in 2018, and a permanent injunction was issued last year by a federal district court judge. The state appealed, which led to the ruling that was issued on August 19th of this year by the Court of Appeals for the Tenth Circuit.
The case, like all others challenging these types of laws was brought on a claim that the law violated the First Amendment rights of the people/groups who were bringing the suit. In other words, the argument was that a state prohibition on taking pictures unconstitutionally limited the plaintiff’s free speech. Kansas argued that it was prohibiting actions, not speech, and as a result was outside the scope of the First Amendment. The Court disagreed, finding that the other side of the “effective consent” coin was “deception.” Because the plaintiffs would presumably make false statements in order to gain consent to film the operation, the law regulated protected speech. Further, the court held that it was speech that discriminated against specific viewpoints, because it was protecting a specific kind of operation- animal agriculture.
It’s important to note that the First Amendment doesn’t prohibit all regulation of protected speech. Instead, the state must meet a standard called “strict scrutiny” in order to pass those types of laws. Strict scrutiny is a high bar, and the government must prove that there is a compelling state interest in suppressing the speech, that the law is necessary to preserve that interest, and the law is narrowly tailored to prohibit as little as possible. The court recognized this, but held that Kansas did not attempt to prove that their law met this burden. As a result, the Tenth Circuit agreed with the District Court holding that relevant portions of the law were unconstitutional and unenforceable.
The dissent in the case also focused on consent. However, the dissenting Judge felt the other side was more convincing, arguing that “lies uttered to obtain consent to enter the premises of an agricultural facility are not protected speech,” because a “fraudulently obtained consent to enter another’s property… is not protected by the First Amendment.”
Kansas Attorney General Derek Schmidt has not yet decided whether to appeal the case, according to a news release. If he does, he will request that the United States Supreme Court agree to hear it. If he does not, then the injunction will stand, and the statute will remain unenforceable.
Iowa’s original law, Iowa Code § 717A.3A, was passed in 2012. It criminalized someone accessing agricultural production facilities by false pretenses as well as the act of making false statements as part of an employment application to an agricultural production facility. After being challenged, the district court found that it was unconstitutional on free speech grounds, and issued a permanent injunction forbidding the state from enforcing the statute. The case was appealed to the Court of Appeals for the Eighth Circuit. A majority of the court held that the provision prohibiting access by false pretenses did not violate the first amendment, but that the employment provision did.
First, the access provision. The Eighth Circuit in the Iowa case used similar reasoning to the dissent in the Kansas case. Specifically, the held that because the Iowa law prohibited false speech that is meant to cause a legally recognizable harm- specifically, trespass- it was not protected under the first Amendment. As a result, the injunction prohibiting that portion of the law from being enforced has been lifted, and the state may again prosecute people who gain access to agricultural production facilities through the use of false pretenses.
Secondly, the employment provision. This subsection prohibits situations where a person “[m]akes a false statement or representation as part of an application or agreement to be employed at an agricultural production facility,” if s/he “knows the statement to be false, and makes the statement with an intent to commit an act not authorized by the owner of the agricultural production facility, knowing that the act is not authorized.” In this case, the court applied the strict scrutiny test to the language, and found that the law was too broad and far reaching to meet the requirements. As a result, it was found to be unconstitutional. It’s important to note, however, that the Eighth Circuit specified what a “less restrictive means” might look like; prohibiting “only false statements that are material to a hiring decision.” The court refused to imply those words into the statue, leaving it to the state legislature to do so if they found it necessary.
As a result, the case has been sent down to the District Court. There has been no public discussion of next steps in regards to possible appeals.
While the recent Eighth Circuit ruling was limited to §717A.3A, the “ag-gag” law in Iowa is much broader. In 2019, in response to the District Court ruling initially striking down that section, the state legislature passed Iowa Code § 717A.3B, which criminalized the use of deception to obtain access to an agricultural production facility. In 2020, the legislature added a criminal offense in Iowa Code § 716.7A for “entering or remaining on the property of a food operation without … consent.” And finally, in April of this year, the legislature passed Iowa Code §727.8A, which prohibits placing a camera or recording device while trespassing.
Iowa Code § 717A.3B was challenged shortly after it passed. The district court granted the plaintiff’s motion for a preliminary injunction, prohibiting enforcement of its provisions. Most recently, the court decided to “continue” the case, waiting to see how the Eighth Circuit ruled in the case discussed above. Now that the ruling has been issued, this case will move forward in light of the Eighth Circuit’s reasoning and findings.
Iowa Code § 716.7A has not (yet) been challenged, and is still enforceable.
On August 10th, 2021, several interest groups filed a complaint challenging Iowa Code §727.8A on First Amendment free speech grounds. The lawsuit is still in a very preliminary stage, and no rulings are expected anytime soon. However, the lawsuit- and that section of the Iowa Code- will be considered in light of the Eighth Circuit’s reasoning and findings.
When looking at the Kansas v. Iowa rulings, there are similar provisions where the Circuit judges came to opposite conclusions based on reasoning from the same case. That case was United States v. Alvarez, 567 U.S. 709 (2012), a United States Supreme Court (“SCOTUS”) plurality decision. This leads to what is known as a “circuit split,” when two or more circuits reach conflicting conclusions about the same legal issue. If one or both of these cases are appealed, the SCOTUS retains the ability to “grant cert,” or decide whether or not to hear the case. In making that decision, the existence of a circuit split is a factor that the court will consider, according to the rules of the Court.