Yesterday, we reported on a decision by the U.S. Court of Appeals for the Eighth Circuit that rejected a challenge by animal rights activists to a so-called "ag gag law" in Iowa. In a parallel decision the same day, the court issued another opinion rejecting a First Amendment challenge by animal rights groups to another aspect of the same law. Animal Legal Defense Fund v. Reynolds, No. 22-3464 (8th Cir. Jan. 8, 2024).
The second opinion focused on that part of the Iowa statute that makes it a crime for a trespasser 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." Iowa Code § 716.8A. The court determined that plaintiffs had no standing to challenge the placement provision of the statute but did have standing to challenge the use provision.
Because the use provision is a content-neutral time, place and manner restriction, the plaintiffs' facial challenge turned on whether the law survived intermediate scrutiny, namely whether the law is narrowly tailored to serve the state's significant governmental interests. Plaintiffs conceded that Iowa has a significant interest in protecting private property, so the only question was whether the law is appropriately narrowly tailored. While the district court ruled that the use provision failed this test, the court of appeals disagreed.
The court of appeals rejected the district court's analysis that the law was not narrowly tailored because there are other Iowa laws, such as the peeping tom law or the invasion of privacy law, that would cover the same kind of conduct that the use provision prohibits. The court of appeals ruled that
[a]s opposed to these two limited laws, the Act totally bans all uses of a camera on trespassed property. Though this means the Act sweeps more broadly than these other laws, that does not make it unconstitutional. "[T]he requirement of narrow tailoring is satisfied so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation." Slip op. at 13 (citation omitted; cleaned up).
As the Eighth Circuit further observed, trespassing is particularly problematic when accompanied by a surveillance device:
Without a doubt, trespassing is a legally cognizable injury because it harms the privacy and property interests of property owners and other lawfully-present persons. Trespassers exacerbate that harm when they use a camera while committing their crime. The Act is tailored to target that harm and redress that evil. Because the Act's restrictions on the use of a camera only apply to situations when there has first been an unlawful trespass, the Act does not burden substantially more speech than is necessary to further the State's legitimate interests. [Slip op. at 14.]
Whether the plaintiffs in these cases intend to seek further appellate relief is unclear. What these two decisions do make very clear, however, is that it is a crime in Iowa to use deception to gain access to, or employment by, a farm with an intent to do harm to the farmer or their animals, equipment or facilities and, while on that farm, use a camera that records or transmits images.
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