By Leisa Boley-Hellwarth
The legislative branch of government writes the laws. The executive branch of government enforces the laws, and the judicial branch of government interprets the laws. This is known as our balance of power.
Just because a legislature passes a law doesn’t mean it will be found to be valid or enforceable if litigation ensues. An excellent example of this happened just several months ago in Iowa, a state synonymous with farming. In 2019, the Iowa Legislature sought to protect their agricultural interests from undercover reporting and surreptitious investigative journalistic methods so they amended their “ag-gag” law. These are statutes that are anti-whistle blower laws that apply within the agriculture industry. The term “ag-gag” typically refers to state laws in the U.S. that forbid undercover filming or photography of activity on farms without the consent of their owner — particularly targeting animal rights activists of animal rights abuses at these facilities. Although these laws originated in the U.S., they have also begun to appear in Australia and Canada.
Let’s look at the Iowa scenario. The legislature amended Iowa Code Section 727.8A and made it an enhanced crime to place an electronic surveillance device on trespassed property. This revision is also known as the Trespass Surveillance Law. The purpose of the change was to deter animal rights activists from trespassing on and secretly recording from animal facilities in Iowa.
On Oct. 10, 2021, Animal Legal Defense Fund v. Reynolds was filed in the U.S. District Court for the Southern District of Iowa. The plaintiffs are five non-profit organizations dedicated to animal welfare, environmental protection, and other grassroots advocacy issues. To gather information on animal abuse and other illegal conduct, they conduct investigations of the day-to-day activities at certain facilities at which they suspect wrongdoing occurs. Plaintiffs represent that these investigations are conducted undercover and require the use of surreptitious video and photography to gather evidence, which they present to legal authorities, elected officials, media organizations and the general public. Plaintiffs brought this action to challenge the Trespass Surveillance Law, which they argue infringes on their freedom of speech rights guaranteed by the First Amendment to the United States Constitution. They contend the law impermissibly restricts speech by making it an enhanced crime to place an electronic surveillance device on trespassed property. Lest you think this paragraph seems overly friendly to the plaintiffs, it is copied directly from the Court Order of Sept. 26, 2022.
The defendants are five state and county government officials (including the Governor and the Attorney General) sued in their official capacity. They, as members of the executive branch, are responsible for enforcing violations of the Iowa Recording Ban. Defendants assert the law does not regulate protected speech under the First Amendment. They argue if the law does regulate speech, it is narrowly tailored to a significant governmental interest.
The relevant law in this case makes it a crime for “a person committing a trespass to knowingly place or use a camera or electronic surveillance device that transmits or records images or data while the device is on the trespassed property.” The first offense is an aggravated misdemeanor and a second or subsequent offense is a class “D” felony. The Trespass Surveillance Law imposes significantly enhanced criminal sanctions compared with the general trespass law, which is generally a serious misdemeanor.
On Sept. 26, 2022 the Court issued a 22-page Order, which I read so you didn’t have to. The Court seemed swayed by the criminal enhancements to the Trespass Surveillance Law in finding the law violated First Amendment rights. Specifically, the Court held that states may properly determine certain facilities warrant additional legal protections, noting it is the province of the legislature to determine whether special facilities are entitled to special legal protections. However, the law provides protection with respect to the exercise of a First Amendment right.
The United States Constitution does not allow such a singling out of the exercise of a First Amendment right. The decision to single out this conduct is most plainly shown by Defendant’s description of the law as enhancing the penalty for conduct that is already prohibited by law. That is the issue with the law — it is enhancing a criminal penalty based on the exercise of speech (or a predicate component of speech). The law does not limit its reach to specific instances of using a camera such as a peeping tom situation. Rather, the law only punishes a trespasser exercising a constitutional right. Consequently, the Court held that the Trespass Surveillance Law burdens the exercise of speech, and Defendants have not proffered a sufficient justification for such a burden.
Not all farm advocates support “ag-gag” laws such as the Iowa Trespass Surveillance Law. Some agree with the late Elia Kazan, the American film and theater director who opined that “Whatever hysteria exists is inflamed by mystery, suspicion and secrecy. Hard and exact facts will cool it.’