On April 24, 2019, we blogged about Iowa’s latest so-called “ag-gag” law, which is designed to prevent undercover investigations of farms. The statute makes it a criminal offense to use deception to gain access to a farm with the intent to cause physical or economic or other injury to its owners. The Animal Legal Defense Fund and other animal rights organizations have challenged the new law on First Amendment grounds. On December 2, 2019, the United States District Court for the Southern District of Iowa issued a preliminary injunction against enforcement of the statute.
There is little doubt that the amended statute does purport to regulate speech – one cannot engage in deception without communication. Nor is there much dispute that the regulation is content based. The real issue is whether the deception causes legally cognizable harm to the farmers or a material gain to the deceiver. The Supreme Court case that struck down the Stolen Valor Act, Alvarez, holds that such deception is entitled to no First Amendment protection.
The District Court’s order acknowledges that some kinds of deception could cause legally cognizable harm – e.g., one who deceptively seeks employment to burn down the farm. But it also held that the statute on its face applied to numerous other activities – e.g., labor organizing or exposure of animal abuse – that involved no such harm.
The order distinguished Animal Legal Defense Fund v. Wasden, 878 F.3d 1184 (9th Cir. 2018), which upheld a similar provision in Idaho’s ag-gag law. Under Idaho law, any effort to harm an employer is a breach of the duty of good faith and fair dealing that can support legally cognizable harm. Iowa does not recognize that doctrine in the employment context.
The order also discusses other forms of harm that the statute allegedly tries to prevent – e.g., invasions of a farmer’s interest in the land or biosecurity. The order concludes that, in light of existing prohibitions on trespass and endangering biosecurity, the ag-gag law is unnecessary.
The Iowa legislature could likely accomplish much of its intended goal if it were not so overreaching. A statute banning the use of deception with the specific intent to cause tangible, legally cognizable economic injury would likely pass constitutional muster under Alvarez. But the fear of liability would likely deter a fair amount of undercover activity, especially by animal rights groups whose stated objective is to end the production of meat altogether. However nobly motivated, those groups clearly would be in jeopardy of a properly narrow ag-gag statute.