Iowa Ag-Gag: Putting Industry over Free Speech

Iowa Ag-Gag: Putting Industry over Free Speech

By: Meredith Kaufman and Justin Schwegel

A 2019 U.S. District Court decision held an Iowa ag-gag statute unconstitutional. Iowa's attorney general is wasting public resources challenging the ruling despite the dubious constitutional footing of the Iowa statute. 

In January 2019, in Animal Legal Defense Fund v. Reynolds, the U.S. District Court for the District of Iowa held the state’s “Agricultural production facility fraud” statute unconstitutional on summary judgment. The 2012 law created the crime of agricultural production facility fraud for the following:

(a)   Obtain[ing] access to an agricultural production facility by false pretenses.

(b)  Mak[ing] a false statement or representation as part of an application or agreement to be employed at an agricultural production facility, if the person 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.

The decision, ALDF v. Reynolds, is being appealed by the Iowa Attorney General.

The Speech at Issue is Protected Under Alvarez

The Iowa law is an affront to the First Amendment’s Free Speech Clause and a misplaced effort to shield industry from constitutionally protected speech. This article will not summarize the District Court’s opinion, but rather function as an assessment of the law’s constitutional deficiencies.

Because this law concerns false speech, U.S. v. Alvarez applies. In Alvarez, the U.S. Supreme Court held that false speech is not unprotected, but neither is it always protected; false speech made for the purpose of material gain, material advantage, or that inflicts a legally cognizable harm can be lawfully criminalized.

Beginning with Section (a), “obtain[ing] access to an agricultural production facility by false pretenses” does not necessarily result in material gain, material advantage, or inflict a legally cognizable harm such that it should be deemed unprotected speech under Alvarez.

One might lie to gain access to an agricultural production facility to determine whether or not eating meat is ethical based on the conditions under which animals are raised. Viewing what happens inside a slaughterhouse might inform this decision. Nonetheless, one might wish to keep their true intentions to themselves, and claim their real motive is to write an article for a meat appreciation blog, such as Meating Place. In this instance, there is no material gain or advantage, nor is there a legally cognizable harm to the facility, but such an actor would be guilty under Iowa’s agricultural production facility fraud law. This is a crime for which one could be convicted of a serious misdemeanor, notwithstanding the dubious constitutional grounds under which they would be charged.

Let us turn to Section (b). At first glance, Section (b) might appear to be more in line with the sort of unprotected false speech the Court had in mind in Alvarez.  The issue with Section (b), like Section (a), is that it is simply too broad. Let’s use another hypothetical: can a reporter for the Associated Press who seeks to confirm reports of animal abuse at a facility run afoul of the criteria set forth in Alvarez? Indeed, Ag-gag laws such as Iowa’s exist to curb exactly this type of activity.  If the reporter gains employment under false pretenses, such as misrepresenting her true identity and relationship with an internationally syndicated press outlet, and seeks a job with the intent to expose potential animal abuse occurring at the facility, she has violated section (b) of the Iowa statute.

But this lie does not necessarily result in material gain or advantage to the undercover journalist because the lie is intended to expose abuses of animal welfare, rather than accrue to the journalist’s personal gain. In Alvarez the Court stated in dicta that the government may restrict speech without violating the First Amendment if the false claims are “made to effect a fraud or secure moneys or other valuable considerations, say offers of employment.”  However, there is a clear distinction between the dicta in Alvarez and the speech prohibited by the Iowa statute.

An undercover journalist does not lie in order to obtain any valuable consideration, i.e. gainful employment; she lies about seeking gainful employment to gain access to facts and information. An undercover journalist who surreptitiously films without intending to receive or cash a paycheck is not defrauding an agricultural facility of valuable consideration in the manner described by Alvarez, however she would run afoul of the Iowa statute. While the state may introduce criminal penalties for the job seeker who lies about experience in order to secure an income, the state may not criminalize false speech intended to gain access to facts and information relevant to the public discourse. The former is fraud; the latter is investigative journalism.

Consider the further hypothetical that the journalist does, in fact, find animal abuse taking place at the agricultural facility. Exposing this abuse may cause financial harm to the facility, but this is not necessarily equivalent legally cognizable harm. In Alvarez, the Court pointed out that legally cognizable harm arises in the case of defamation, fraud, or other harm “associated with a false statement [emphasis added].” A journalist may gain access to an agricultural facility through misrepresentation. However, if the information she prints is true, or the video footage is authentic, while it may cause financial harm, it is not legally cognizable.

Protected False Speech Must Withstand Strict Scrutiny

Because neither section of the law is unprotected false speech under Alvarez, the law must withstand strict scrutiny in order to survive. Under this rigorous standard a law must be narrowly tailored to serve a compelling interest, restricting no more speech than is necessary to achieve the purpose of the law.

The state’s proffered interests—private property interests and biosecurity—might be deemed compelling (although the District Court determined they were only ‘important’) but the law is not narrowly tailored to either of these interests. How false speech implicates biosecurity any more so than other speech is unclear. Moreover, if the issue truly is about biosecurity and property rights, there are many content-neutral alternatives: the state could criminalize conduct which results in property damage instead. In fact, Iowa already has such laws on the books.

Because both sections of this law fail to meet strict scrutiny, the law is unconstitutional. Are there ways a legislature can draft constitutional Ag-gag laws; yes. Is it good policy to do so; no.

This article has provided a brief summary of constitutional issues associated with Iowa’s Ag-gag law. If you’re interested in a more comprehensive analysis of this law in addition to Ag-gag laws in Kansas, Idaho, and Utah, Meredith’s article The Clash of Agricultural Exceptionalism and the First Amendment: A Discussion of Kansas’ Ag-Gag Law is forthcoming in the spring edition of the Journal of Food Law & Policy (Kaufman, Meredith, The Clash of Agricultural Exceptionalism and the First Amendment: A Discussion of Kansas’ Ag-Gag Law (J. Food L. & Pol’y Spring 2019)).