Free speech v. industrial farms: Iowa’s ag gag laws go to federal court

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The state government’s various attempts over the last nine years to shield industrial animal farms with an ag gag law were spotlighted in court Tuesday. The injunction preventing the first ag gag law, signed into law by Gov. Terry Branstad in 2012, from going into effect was partially upheld by a federal appeal court, while a lawsuit challenging the latest version, signed by Gov. Kim Reynolds in April, was filed in federal district court.

Senior Judge James Gritzner of the U.S. District Court for the Southern District of Iowa ruled in January 2019 the 2012 ag gag law was unconstitutional. That version of the law made it illegal to gain access to an agricultural production facility under false pretenses with “the intent to commit an act not authorized by the owner of the agricultural production facility.” The so-called Agricultural Production Facility Fraud Act also made it a “serious misdemeanor,” punishable by up to a year in jail, to provide false information on a job application at such a facility, if the applicant intends to record images without permission.

“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.

The judge included graphic examples of such investigations in his decision, including one from an undercover investigation at Iowa Select Farms that produced reports of workers hurling small piglets onto a concrete floor. Another investigation at Iowa’s Sparboe Farms documented reported mistreatment of hens and chicks. And yet another, conducted by PETA, exposed workers at a Hormel Foods supplier in Iowa “beating pigs with metal rods,” “sticking clothespins into pigs’ eyes and faces, and a supervisor kicking a young pig in the face, abdomen, and genitals to make her move.

Iowa Attorney General Tom Miller appealed Gritzner’s decision, arguing in a brief filed in Feb. 2019 “there is no First Amendment right to use false pretenses to gain access to an agricultural production facility or employment at said facility, with the intent to knowingly commit an unauthorized act.” Miller contended that since the law “does not prohibit secret recordings and whistleblowing from legitimate employees,” it will not have a significant impact on the public’s right to know.

According to the attorney general’s brief, striking down the law would interfere with the state’s effort “to promote biosecurity,” which “may significantly impact Iowans.”

On Tuesday, a three-judge panel of the 8th Circuit Court of Appeals, “affirm[ed] in part and reverse[d] in part” Gritzner’s 2019 ruling.

The judges found the prohibition on false statements, including omitting certain facts, when applying for a job at an agricultural facility so broad that it violated the First Amendment, and upheld the part of the injunction prohibiting its enforcement. But they also overturned the injunction as it applied to the section of the law on gaining access to agricultural production facilities to do something not authorized by the owner.

In a concurring opinion filed separately, Judge L. Stephon Grasz said he was in full agreement with his fellow two judges regarding the ban on making false statements when applying for a job — which was broad enough to make insincerely complimenting an interviewer’s tie while applying for a job a crime — but had some reservations when it came to the access provision of the ruling.

The court’s opinion today represents the first time any circuit court has upheld such a provision. At a time in history when a cloud of censorship appears to be descending, along with palpable public fear of being “cancelled” for holding “incorrect” views, it concerns me to see a new category of speech which the government can punish through criminal prosecution. Ultimately, the Supreme Court will have to determine whether such laws can be sustained, or whether they infringe on the “breathing room” necessary to effectuate the promise of the First Amendment.

Grasz explained he was joining the others, despite his misgivings, because their joint opinion was “consistent with current law, as best we can determine it from limited and sometimes hazy precedent.”

Since the first ag gag laws were passed in the 1990s to prevent undercover investigations of the treatment of farm animals, federal courts have struck down three — those passed by Idaho, Wyoming and Utah — for violating the First Amendment. Two other states’ laws are currently under litigation.

The appeals court ruling did not address Miller’s claim that the 2012 law was about biosecurity, not shielding agribusinesses from undercover investigations.

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In a written statement on Tuesday, Rita Bettis Austin, legal director of the ACLU of Iowa, called the court’s decision “a significant partial victory for free speech.”

The ACLU of Iowa filed the challenge to the 2012 ag gag law in October 2017, on behalf of the Iowa Citizens for Community Improvement (Iowa CCI), 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.

Bettis Austin said, the ACLU of Iowa and the groups were “disappointed that the Court didn’t take the same approach to the provision of the law criminalizing ‘obtaining access to an agricultural production facility by false pretenses’ and are evaluating available options for further review by courts.”

Iowa CCI State Policy Organizing Director Adam Mason criticized the appeals court decision, saying, “Our ability to document and to expose is critical to the public interest in greater transparency and safety in agricultural protection facilities, including protecting workers from abusive working conditions and protecting water quality in our state.”

Iowa CCI was one of the groups that filed the challenge to the ag gag law passed by the Iowa Legislature this year. Along with Food & Water Watch, the Animal Legal Defense Fund, Bailing Out Benji and the PETA, the group is seeking to have a federal judge issue an injunction against the new law.

The new law increases criminal penalties for trespassing in order to use or place “a camera or electronic surveillance device that transmits or records images or data.” The law also creates new penalties for “unauthorized sampling,” which it defines as a person trespassing on private property to obtain “samples of any of the following: a. Bodily fluids or substances from an agricultural animal. b. Any product from an agricultural animal. c. Soil, air, surface water, or ground water from land or structures used for the production of any agricultural animal or the production of an agricultural crop.”

In either case, a first offense would be an aggravated misdemeanor, carrying penalties of up to two years in jail and a fine between $855 and $8,540. Any subsequent offense would a Class D Felony, resulting in up to five years in prison.

The groups note in their lawsuit that trespassing is otherwise a simple misdemeanor under Iowa law, carrying a maximum penalty of up to 30 days in jail and a fine of $855.

The groups challenging the law say it is another attempt to ban investigations done in the public interest in order to protect agricultural interests.

“By passing yet another unconstitutional ag gag law, Iowa’s state legislature has put on full display its willingness to trample the Constitution in an attempt to hide from the public what really goes on at factory farms,” Tyler Lobdell, staff attorney at Food & Water Watch, said in a statement.

The 2012 law and the law signed in June are not the only ag gag laws the Iowa Legislature has passed. Two months after Judge Gritzner ruled the first law was unconstitutional in 2019, lawmakers passed an almost identical law, which Gov. Reynolds quickly signed.

The ACLU of Iowa filed a challenge in federal court to that law as well, and in December 2019, Judge Gritzner issued an injunction prohibiting the state from enforcing it while the lawsuit works it way through the courts.