Iowa legislators just can't quit violating the constitution in the service of livestock farmers and their lobby groups.
Two months after a federal judge comprehensively dismantled Iowa's 2012 law prohibiting “agricultural production facility fraud,” the state House and Senate approved a bill creating the crime of "agricultural production facility trespass." Governor Kim Reynolds has indicated she will sign the legislation. (UPDATE: She signed it on March 14.)
Although the drafters modeled the new bill after portions of an Idaho statute that survived a legal challenge, federal courts could and should strike down this law. Like the previous "ag gag" legislation, its primary purpose is to suppress speech reflecting certain viewpoints.
A NARROWER FOCUS
Iowa's 2012 law stipulated,
1. A person is guilty of agricultural production facility fraud if the person willfully does any of the following:
a. Obtains access to an agricultural production facility by false pretenses.
b. Makes 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 agricultural production facility, knowing that the act is not authorized.
U.S. District Court Senior Judge James Gritzner found that while the statute purported to regulate conduct, protected speech “is necessarily implicated” because a person can’t violate the law “without engaging in speech […] The speech implicated is false statements and misrepresentations.” (Read his full ruling here.)
Last year, the Ninth Circuit Court of Appeals struck down most of Idaho's "ag gag" law on similar grounds. One part of that decision inspired Iowa lawmakers.
However, the 9th Circuit said two provisions of the law — using misrepresentation to obtain records and employment with the goal of causing harm — should be allowed to stand.
“Unlike false statements made to enter property, false statements made to actually acquire agricultural production facility records inflict a property harm upon the owner, and may also bestow a material gain on the acquirer,” the ruling said.
Similarly, the provision disallowing gaining employment through misrepresentation should stand because it requires the intent to inflict actual damages beyond emotional distress, the 9th Circuit said.
1. A person commits agricultural production facility trespass if the person does any of the following:
a. Uses deception as described in section 702.9, subsection 1 or 2, on a matter that would reasonably result in a denial of access to an agricultural production facility that is not open to the public, and, through such deception, gains access to the agricultural production facility, 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.
b. Uses deception as described in section 702.9, subsection 1 or 2, on a matter that would reasonably result in a denial of an opportunity to be employed at an agricultural production facility that is not open to the public, and, through such deception, is so employed, 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.
Committing "agricultural production facility trespass" or conspiring with someone to commit that crime would be a serious misdemeanor for a first offense and an aggravated misdemeanor for a second or subsequent offense.
THE SAME PURPOSE
David Keating, president of the Virginia-based Institute for Free Speech, provided this comment to Bleeding Heartland after reviewing the new bill:
This legislation is poorly written and when challenged will likely be ruled unconstitutional. Why is a trespassing measure is aimed at protecting only one industry, but not all businesses with health and safety concerns?
Too many of the bill's definitions are vague, which could lead to prosecutions based on a person’s views about agriculture.
I’m concerned the real aim is avoiding bad press for agriculture.
Indeed, supporters acknowledge that the bill is designed to prevent undercover investigations by those who would expose certain practices at farms or food processors.
"I believe animal agriculture is incredibly important to Iowa," Republican State Senator Ken Rozenboom said in his opening remarks on March 12 as floor manager for Senate File 519 (beginning around the 11:35:40 mark of this video). Ending debate on the bill about 25 minutes later, he argued, "Iowa's heritage and Iowa's future is agriculture. It's many other things, but it's certainly agriculture." The industry is a key driver to our economy and tax revenues at the state and local levels. We lead the country in products such as pork, eggs, and corn.
Rozenboom continued, "Agriculture in Iowa deserves protection from those who would intentionally use deceptive practices to distort public perception of what best practice is to safely and responsibly produce food."
State Representative Jarad Klein emphasized the same theme during House debate a few hours later (beginning around the 3:56:00 mark of this video). He explained that while the 2012 law prohibited someone from telling a lie to gain access to a production facility, it didn't consider whether the person intended to cause economic harm. This bill specifies the intent to cause harm or injury. "This is a very important bill for agriculture" and farmers in Iowa, Klein said.
Defending against the federal lawsuit, the state claimed the current law's true purpose was to protect biosecurity and private property, not to restrict speech by critics. Proponents remembered to pay lip service to those goals during yesterday's debate. Rozenboom and Klein both discussed how diseases such as avian flu can devastate livestock producers. State Representative Bruce Bearinger, the only House Democrat to speak in favor of the legislation, said during his brief remarks, "It's an unfortunate bill. But in this era of high-risk bioterrorism and the extreme need for biosecurity and extremism, it's an important bill to protect our agriculture entitles across Iowa."
Judge Gritzner addressed such arguments in his ruling.
Defendants have produced no evidence that the prohibitions of § 717A.3A are actually necessary to protect perceived harms to property and biosecurity. [...] Defendants have made no record as to how biosecurity is threatened by a person making a false statement to get access to, or employment in, an agricultural production facility.”
To survive strict scrutiny in court, speech restrictions must be "narrowly tailored" to further a compelling government interest. Senate File 519 doesn't mandate better hygiene to promote biosecurity at agricultural facilities. It does nothing to protect against bacteria or viruses carried by those who might sneak in to take cheerful selfies and praise Iowa farm operations on their social media feeds.
Only people with critical views or seeking to spread negative messages about conventional farming practices could be charged with a crime.
"I WANT YOU TO THINK ABOUT OTHER CHILLING EFFECTS HERE"
Senator Liz Mathis was the first Democrat to speak against the bill (beginning around 11:38:00). She provided an extended analysis of First Amendment principles, drawing on her past experience as a journalist and quoting from Gritzner's ruling.
Iowa law already prohibits trespassing, including unauthorized filming or photographing in some circumstances, Mathis noted. Employers already can vet job applicants, checking references to find out if someone is lying. They can do a criminal background check on existing employees. People can be charged with fraud if lies do substantial economic damage to a business.
"I want you to think about other chilling effects here," Mathis warned colleagues. "Why is it a constitutional problem to outlaw lying?" [...] The First Amendment protects false speech when there is no legally recognizable harm." While the government can ban certain types of harmful speech like perjury, the constitution protects even distasteful lies with no social benefit.
When it comes to undercover investigations, however, lying is done in service of the public good. And not only in the agriculture industry. The enforcement of anti-discrimination laws, for example, has long relied on undercover audit testing of landlords and employers to ensure that they do not treat housing or job applicants differently based on protected class status such as race, gender, or disability.
Such testing often requires false speech, for example when submitting identical false resumes to an employer that vary only by the name of the applicant, or when a housing tester misrepresents her intention to actually rent a home.
The federal government and the courts have recognized for decades that these tactics are a critical part of upholding civil rights protections.
So the [federal court] opinion is efforts to criminalize such undercover investigations insulate private actors from being held publicly accountable. And this is in any industry. And they also violate the First Amendment.
In closing, Mathis said,
I'm asking the body to consider this: why just agriculture, when there are so many other businesses and manufacturing companies that may have some processes that might not be the prettiest to have happen in front of a camera? [...]
I am a friend of agriculture. I grew up on a farm. I understand, some of the processes, again, are not pretty. But what I also understand is that we have a First Amendment. And it is a First Amendment for a reason. Thank you for listening, Mr. President.
"ALL OF THOSE TRUTHFUL REVELATIONS CAUSED ECONOMIC HARM TO THE EMPLOYERS"
Although Iowa's new bill criminalizes deceptive practices used to gain access to agricultural facilities, the speech it is really trying to prevent could be true or false.
Speaking immediately after Mathis, Democratic Senator Herman Quirmbach, an economist by training, focused on calls to punish people over economic harm caused by "truthful communication of workplace conditions." He recalled Upton Sinclair's exposes of the meatpacking industry and other muckrakers who exposed child labor and safety problems in sweatshops. "All of those truthful revelations caused economic harm to the employers," resulting in regulation of workplaces.
Later in the 20th century, revelations about the tobacco industry cost corporations billions. The asbestos industry went out of business after cancer risks were exposed. But spreading that negative information saved lives, Quirmbach pointed out. Lawmakers shouldn't be punishing people for truthful revelations, he added. They can already be sued for economic harm caused by spreading false information or physically damaging businesses.
During the House debate, Democratic Representative Liz Bennett expressed "strong concerns" about how the bill seeks to "silence whistle-blowers and consumer advocates. This bill gives the middle finger to free speech, consumer protection, food safety, and animal welfare."
"Loose language" about intent to cause injury raised a red flag for Bennett too. A person wouldn't even need to publicize damaging information to be charged under this law. Obtaining a job while intending to investigate would be a crime, which is "basically in my book a thought crime."
Damage to a facility's reputation may be warranted if unsafe or cruel practices are going on, Bennett added. Like Quirmbach, she cited Upton Sinclair's novel The Jungle, which grew out of undercover investigations at meatpacking plants. She noted that Senate File 519 applies to puppy mills as well as to traditional livestock producers. The U.S. Department of Agriculture has in recent years hidden dog breeder inspection data that used to be publicly available.
In closing, Bennett predicted courts will strike down the new bill because "its objective is to silence speech that producers find inconvenient."
When there's money at stake, corners will always be cut. And when the government cuts dollars to USDA inspection, as often happens, unsafe and inhumane practices often slip through the cracks. The American consumer has a right to know, so I'm a hell no on this bill today.
Fellow Democrat Sharon Steckman also spoke against the bill, saying it "smacks right in the face of freedom of speech."
PROTECTING SPEECH OF "GOOD-FAITH" EMPLOYEES ONLY
Defenders denied the bill would target whistle-blowers. Responding to Bennett in his closing remarks, Klein claimed the goal is to punish "false speech with intent to cause harm." He admitted this bill was "trying to go at similar problems" as the previous ag gag law. But "we have narrowly put this together," he insisted, drawing on language from Idaho that was upheld.
The only Senate Democrat to speak for the bill was Nate Boulton, an experienced attorney in employment law. He asked Rozenboom a few friendly questions, such as: If I'm a good-faith employee and want to report an abusive practice, is the intent of this law to prevent me from raising that concern? Rozenboom said no, this law is about using deception to gain access to a facility.
Boulton emphasized that distinction is important: good-faith employees are protected if they report mistreatment of animals or food safety problems. This legislation is just about conduct by bad-faith trespassers. He argued that the bill strikes a good balance to protect agriculture as well as employees.
So, the state of Iowa is not trying to prevent a person who stumbled on scandalous or illegal practices from spreading the word. The state is only limiting the ability of critics to investigate and report on such abuses.
Sounds like a viewpoint-based speech restriction.
Side note: when lawmakers were considering the original ag gag bill, staff from the Iowa Attorney General's office encouraged them to focus on trespassing instead and allow anyone charged to offer an “affirmative defense” if they had reason to believe illegal activity was occurring. The new bill doesn't include such language. The Attorney General's office registered as "undecided" on this legislation and had no further comment last week.
BIPARTISAN VOTES IN BOTH CHAMBERS
When the 2012 ag gag law passed, sixteen Iowa Senate Democrats and twelve in the House joined unanimous Republican caucuses. Yesterday's votes were similar.
All 32 Senate Republicans voted for SF 519, along with the following nine Democrats: Tony Bisignano, Boulton, Bill Dotzler, Kevin Kinney, Amanda Ragan, Jackie Smith, Todd Taylor, Rich Taylor, and Zach Wahls. Only three of them were lawmakers when Iowa passed the original ag gag bill: Ragan was a yes that day in 2012, while Dotzler and Todd Taylor voted no.
Eight Democrats voted against the bill: Joe Bolkcom, Claire Celsi, Rob Hogg, Pam Jochum, Jim Lykam, Mathis, Janet Petersen, and Quirmbach. All had opposed the 2012 version except Celsi, who wasn't serving in the legislature at that time.
House members approved the bill by 65 votes to 32. Yes votes came from 51 Republicans and fourteen Democrats: Bearinger, Wes Breckenridge, Dennis Cohoon, John Forbes, Mary Gaskill, Chris Hall, Kenan Judge, Tim Kacena, Scott Ourth, Rick Olson, Todd Prichard, Ras Smith, Dave Williams, and Mary Wolfe. Only three served in the House in 2012; at that time, Gaskill supported the ag gag bill, while Hall and Olson voted no.
Jeff Shipley was the only Republican lawmaker to oppose SF 519 on March 12, joining 31 House Democrats: Ako Abdul-Samad, Marti Anderson, Bennett, Timi Brown-Powers, Karin Derry, Molly Donahue, Tracy Ehlert, Ruth Ann Gaines, Lisa Heddens, Bruce Hunter, Chuck Isenhart, Dave Jacoby, Lindsay James, Jennifer Konfrst, Monica Kurth, Jeff Kurtz, Vicki Lensing, Mary Mascher, Heather Matson, Charlie McConkey, Brian Meyer, Amy Nielsen, Jo Oldson, Kirsten Running-Marquardt, Mark Smith, Art Staed, Sharon Steckman, Kristin Sunde, Phyllis Thede, Beth Wessel-Kroeschell, and Cindy Winckler. Many of them had voted against the 2012 law as well.
House Democrat Bob Kressig and two House Republicans (Louis Zumbach and Jon Thorup) were absent for yesterday's vote.
Of the 20 attorneys now serving in the Iowa legislature, sixteen voted for this bill: Democratic Senator Boulton and Representatives Prichard, Olson, and Wolfe, and Republican Senators Jim Carlin, Julian Garrett, Charles Schneider, Jack Whitver, and Zach Whiting and Representatives Jon Jacobsen, Dustin Hite, Stan Gustafson, Chris Hagenow, Megan Jones, Brian Lohse, and Andy McKean.
The four attorney-legislators who voted against the bill were Democratic Senator Hogg and Representatives Derry, Meyer, and Oldson.
Final note: Keating of the Institute for Free Speech commented yesterday,
We have great foods and one of the best food safety systems in the world, if not the best. Yet bills like this can undermine confidence in agriculture. Consumers may well conclude the law is aimed at trying to hide things from the public. Ironically, it could wind up hurting the reputation of Iowa farmers rather than protecting it.
It also hurts the reputation of Iowa lawmakers, who again demonstrated that shielding a powerful industry from criticism takes priority over the First Amendment right to express unpopular views.
Top photo: Photo by Robin Klein of the inscription of the First Amendment to the U.S. Constitution (15th December, 1791) in front of Independence Hall in Philadelphia, Pennsylvania.