ACLU of Iowa challenges ‘ag gag’ law it says puts ‘the PR interests of one industry above the constitutional rights of its critics’

Signing ceremony for the Agricultural Facility Trespass Act on Mar. 14, 2019 — courtesy of Office of Gov. Kim Reynolds. Pigs in a CAFO (concentrated animal feed operation). — photo via the United States Geological Survey, public domain

In March, just two months after a federal judge struck down Iowa’s “ag gag” law as unconstitutional, the Iowa legislature passed a new, almost identical version of the law.

“So we’re doing another bill pretty similar to the last one which is going to end up … costing taxpayers more money [to defend in court],” Democratic Rep. Sharon Stockman from Mason City said during the Iowa House floor debate on Agricultural Facility Trespass Act.

Stockman’s assessment was correct.

On Monday, the ACLU of Iowa, which filed the lawsuit that resulted in the first ag gag law being struck down, filed a fresh lawsuit. The plaintiffs are the same as last time — Iowa Citizens for Community Improvement, the Animal Legal Defense Fund, People for the Ethical Treatment of Animals, the National Center for Food Safety and Bailing Out Benji, an Iowa nonprofit focused on the welfare of dogs — and the lawsuit’s argument is basically the same.

“The Ag Gag 2.0 law aims to silence critics of worker rights abuses, animal cruelty, unsafe food safety practices, and environmental hazards in agricultural facilities,” Rita Bettis Austen, ACLU of Iowa legal director, said in a statement.

Bettis Austen called the bill Gov. Kim Reynolds signed into law during a photo op two days after the legislature passed it, an attempt to use “the power of the criminal laws to target unpopular speech to protect those with power.”

She added, “Free speech means the government is not allowed to put the PR interests of one industry above the constitutional rights of its critics.”

The Agricultural Facility Trespass Act makes it a crime for a person to use “deception” to gain access to an agriculture production facility, or apply for a job at one, “with the intent to cause physical or economic harm or other injury to the agricultural production facility’s operations, agricultural animals, crop, owner, personnel, equipment, building, premises, business interest, or customer.”

In its filing with the U.S. District Court for the Southern District of Iowa, the ACLU argues the law actually offers its greatest protection to the worst agricultural facilities.

The Ag-Gag law creates a free speech paradox. When Plaintiffs’ undercover investigators come across extreme animal cruelty or serious violations of food safety, labor, or environmental laws, they are more likely to receive more media attention, and will be more likely to be prosecuted under [the ag-gag law]. The more significant the public’s interest in the exposé, the more likely the economic harm or ‘other injury,’ and thus the more likely a prosecution. Thus, the objective, and reality, of the law is to impede not just the gathering, but particularly the release of information of public concern.

The ACLU also argues that “deception” is broadly defined to include both “affirmative statements or omissions, to gain access to or employment at an agricultural production facility.” As Randy Evans, formerly of the Des Moines Register, pointed out, a person who “goes to puppy mill under pretext of buying a dog, but really wants to see conditions the dogs live under” would be committing a crime under this law.

A first-time violation of the ag gag law would be a serious misdemeanor, and a person could be jailed for up to a year and fined between $315 and $1,875. Further violations of the law would be aggravated misdemeanors, which could result in up to two years in jail and fines from $625 to $6,250.

Anyone who assisted a person who violated this law could face conspiracy charges, and if convicted, would receive the same punishment as the person who entered the agricultural facility.

“The intent of Iowa’s ag gag law is clear. It is to silence those who would expose unsafe working conditions, environmental pollution, or other potential violations at factory farms and other animal facilities,” Adam Mason, state policy organizing director at Iowa Citizens for Community Improvement, said in a statement, when the lawsuit was announced. “The state has carved out unfair rules for industrialized agriculture that no other industry has, and that is harmful to workers and the environment because it keeps us from effectively documenting abuses.”

Senior Judge James Gritzner reached the same conclusion in his ruling striking down the previous ag gag law.

“The law has the effect of criminalizing undercover investigations of certain agricultural facilities [such as industrial livestock farms] and those of interest to the general public, such as puppy mills,” Gritzner wrote.

Following the announcement of the lawsuit on Monday, Gov. Kim Reynolds released a written statement declaring the state would defend the law in federal court.

“The Ag Trespass bill is designed to protect Iowa farmers from safety threats or biosecurity risks that untrained people on their property may cause,” the governor said. “I am committed to protecting Iowa farmers and ensuring the safety and security of their livestock.”

The governor’s statement echoes the state’s defense of the first ag gag law that Judge Gritzner specifically rejected, explaining that Iowa already had laws to protect agricultural facilities from trespass or threats to biosecurity.

“As to private property and trespass concerns, an already existing section of Chapter 717A of the Iowa Code provides that persons ‘shall not, without the consent of the owner’ do various acts, including entering the facility to disrupt or otherwise harm the operation, Griztner wrote.

“Biosecurity is effectively and appropriately protected by the last section of Chapter 717A, which prohibits the willful possession, transportation, or transfer of ‘a pathogen with an intent to threaten the health of an animal or crop.’”

On Monday, Bailing Out Benji Executive Director Mindi Callison noted in a statement, “It took our Iowa legislators just 10 days to submit, discuss, vote on and sign this new bill into law.” She said, “we are deeply saddened that we have to, again, go to court to try to hold the state of Iowa accountable for violating our first amendment rights.”

Joining the ACLU of Iowa in representating the plaintiffs in the lawsuit are Public Justice, the Law Office of Matthew Strugar, Justin Marceau and Alan Chen of the University of Denver Sturm College of Law, as well as the in-house counsels for the plaintiff organizations.

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