Posted by Amy Johnson Michael Blaser on Friday, January 12, 2018

To Our Clients:

The Iowa Legislature passed H.F. 589, “Agriculture Production Facility Fraud,” codified as Iowa Code section 717A.3A in 2012. This statute is commonly referred to as the ‘Ag-gag’ law or the Ag-Fraud law. The Ag-Fraud law in Iowa criminalizes: “a) obtaining access to an agricultural production facility by false pretenses; and b) making a false statement or representation as part of an application or agreement to be employed at an agricultural production facility, if the person knows the statement to be false, and makes the statement with an intent to commit an act not authorized by the owner of the facility, knowing that the act is not authorized.”

The American Civil Liberties Union (ACLU) of Iowa, along with many other public interest groups such as PETA, filed a lawsuit challenging Iowa’s ‘Ag-gag’ law on October 10, 2017. The lawsuit is challenging the law on the basis that it’s a violation of the First Amendment’s freedom of speech and freedom of the press, as well as the Fourteenth Amendment’s guarantee of equal protection.

Iowa is one of several states to pass ‘Ag-gag’ legislation. Federal district courts have recently struck down ‘Ag-gag’ laws in Idaho, Utah, and Wyoming.  On January 4, 2018, the 9th Circuit Court of Appeals was the first federal appeals court to review such a law - in this case - Idaho’s law.  While the court did strike down two sections of the law, the court also upheld two sections of the law: (i) obtaining employment with an agricultural production facility by lying with the intent to cause economic or other injury to the facility operations, property or personnel and (ii) lying to obtain records of an agricultural production facility.  In addition, while the portion of the law that criminalized lying to enter a production facility to exercise free speech rights was struck down by a 2-1 vote, the dissent wrote a strong opinion that an owner’s right to exclude persons from the owner’s property (i.e., not permit trespassing) takes precedent over permitting persons to knowingly lie to commit trespass, regardless of the reason for trespassing.

The dissent’s argument regarding trespassing in the 9th Circuit case  may find more support in the Iowa federal district court that has the Iowa case, and/or at the 8th Circuit Court of Appeals, with jurisdiction over Iowa.  Because the Iowa statute focuses on the issue of false representation and knowingly providing false information related to employment applications, the question for the court to address will ultimately be whether or not false statements on a job application made to commit trespassing or to knowingly perform unauthorized acts on the property are even subject to First Amendment scrutiny.