Iowa's Ag Gag 3.0 may get past courts

It took them long enough.

After federal courts blocked two laws designed to suppress unauthorized access to livestock production facilities, Iowa lawmakers approved and Governor Kim Reynolds signed a third attempt to keep animal rights activists from filming or photographing conditions inside farm buildings or slaughterhouses. This time, the legislature finally took the path state attorneys recommended way back in 2011: beef up the trespassing law as applied to agriculture, without reference to speech or expression.

The new law has a realistic chance to survive a court challenge.

NEW LAW AVOIDS PITFALLS OF PREVIOUS ATTEMPTS

Senate File 2413 deals with several regulations related to agriculture, but the relevant section for this post is Division II, establishing the crime of “food operation trespass.” Lawmakers added that portion to the bill on June 5. It states in part,

A person commits food operation trespass by entering or remaining on the property of a food operation without the consent of a person who has real or apparent authority to allow the person to enter or remain on the property.

The crime would be an aggravated misdemeanor on first offense and a class D felony on second or subsequent offense.

The law broadly defines “food operation” to include locations where food animals are “produced, maintained, otherwise housed or kept, or processed in any manner,” as well as any location “where a meat food product, poultry product, milk or milk product, eggs or an egg product, aquatic product, or honey is prepared for human consumption […].”

Most newly adopted Iowa laws take effect at the start of the next fiscal year on July 1, but the food operation trespass provisions of Senate File 2413 went into effect immediately after Reynolds signed the bill on June 10.

Those who drafted Ag Gag 3.0 avoided any reference to false statements or representations, which was the downfall of Iowa’s 2012 law banning “agricultural production facility fraud.” U.S. District Court Judge James Gritzner struck down that law in January 2019, holding that it infringed on protected speech because a person couldn’t violate it “without engaging in speech.” (The state appealed his decision to the Eighth Circuit last year. Oral arguments have not yet been scheduled.)

The new law also avoids any reference to deception or intent. Those were key elements of the ban on “agricultural production facility trespass,” which lawmakers and Reynolds enacted in March 2019 in response to Gritzner’s ruling. That bill criminalized using deception to gain access to a agricultural production facility, or gain employment at such a 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.”

I argued at the time that Ag Gag 2.0 looked like a viewpoint-based speech restriction. Indeed, the same advocacy organizations that had challenged Iowa’s 2012 law soon filed a new lawsuit making similar constitutional claims. The same federal judge granted a preliminary injunction to block that law last December. Judge Gritzner wrote,

The scant record supporting Defendants’ proffered interests, the ready availability of alternatives that burden substantially less speech, and the disconnect between § 717A.3B’s means and Defendants’ ends, suggest that the law’s true purpose is to prohibit undercover investigations. Section 717A.3B’s focus on deception is much more tailored to prohibiting undercover investigations, for which deception is vital, than for prohibiting biosecurity violations, for which deception seems peripheral. […]

At the preliminary injunction stage, this Court need not make a final determination regarding whether the law’s true purpose is to deter undercover investigations. It suffices to conclude that Plaintiffs are likely to succeed on the merits because, as explained above, the current record suggests that Defendants are unlikely to show that the proffered interests are compelling, and that the statute is narrowly tailored to advance the proffered interests.

Senate File 2413 doesn’t criminalize misrepresenting oneself to gain access or employment, nor does it prohibit photographing or videotaping confined animals. In that respect, it is similar to an approach the Iowa Attorney General’s office suggested when legislators were considering the first bill addressing “animal facility interference” in 2011. Bleeding Heartland reported exclusively on those discussions after interviewing Chief Deputy Attorney General Eric Tabor.

On the other hand, the new law does not contain a concept Tabor had floated with lawmakers at that time. The idea was to allow anyone charged under the agricultural trespass statute to offer an “affirmative defense” if they had reason to believe illegal activity was occurring at the facility, and had reported such activity to law enforcement.

During this month’s debate on Ag Gag 3.0, advocates acknowledged the purpose of the legislation is to prevent animal rights activists from conducting undercover operations at industrial farm operations and meatpacking plants.

“THE HARM THAT IS DONE BY TAKING A VIDEO…CAN BE IMMENSE”

Republican State Senator Ken Rozenboom floor managed the bill and told his Senate colleagues on June 5 that it would combat “the gravest threats to animal agriculture today.” I pulled this clip from the Senate debate, which you can watch in full starting around 5:28 pm on this video.

The senator recalled that he was targeted by animal rights activists earlier this year. The group Direct Action Everywhere alleged neglect and abuse when releasing photos and videos from Rozenboom’s hog farm in January. The Mahaska County sheriff and attorney later announced their investigation uncovered no abuse.

Rozenboom depicted the strengthened trespassing law as necessary to stop animal rights advocates from harassing owners and sneaking onto their property.

Speaking against the bill, Democratic State Senator Liz Mathis expressed sympathy for what Rozenboom went through but argued that existing laws on trespassing and harassment are sufficient. Having worked in journalism for many years, she warned that the proposals in Senate File 2413 could have a chilling effect on reporters trying to do their jobs.

State Senator Nate Boulton (also a supporter of last year’s ag gag bill) was the only Democrat to speak up for the latest proposal during floor debate. In this part of his remarks, he explained why it’s important to stop animal rights activists from taking videos inside meatpacking plants.

Boulton grew up in Columbus Junction, a meatpacking town, and his grandfather worked in a slaughterhouse for much of his career. A person on a packing house floor can “take a video of what are actually very humane practices and make them appear sociopathic,” he said, bringing “dishonor to very honorable work” by thousands of Iowans.

We say we want to do things to support our workforce and develop our workforce. There is a large segment of our workforce that shows up every day and takes a knife to a hog. And does it thousands of times every day.

When we see those images, they don’t always look good. It doesn’t mean that there was an abusive practice. It doesn’t mean the hog felt any pain in the entire process. It doesn’t look good.

And as Senator Rozenboom has pointed out, there are organizations out there that simply don’t want people to eat meat. The goal is to eliminate production agriculture when it comes to animals. The harm that is done by taking a video of something that has been done by the book every single step of the way can be immense.

There’s a reason for this legislation, and it’s not to get at the media. It’s not to hide abuses. It’s to protect those that are doing everything right and still paying a price.

WILL COURTS UPHOLD THE NEW LAW?

The Republican floor manager, State Representative Jarad Klein, said during Iowa House debate on June 5 that the proposed language had “gone through the Attorney General’s office. They’ve seen it. They have not raised objections to it.”

Lynn Hicks, communications director for the Attorney General’s office, told Bleeding Heartland, “Eric Tabor recalls speaking with Sen. Rozenboom and saying that this bill is more defensible and follows the general idea of what we had previously recommended: an enhanced trespass bill. He does not recall specifically stating whether it would be constitutional.”

The American Civil Liberties Union of Iowa represented plaintiffs in the lawsuits challenging Iowa’s earlier statutes. The group does not preview its legal strategy, but executive director Mark Stringer said in a written statement, “While the text of the bill doesn’t seem like an attack on free speech, if in practice the goal is to stop speech then we believe that continues to be unconstitutional.”

I sought comment from Justin Marceau, a law professor at the University of Denver and expert in constitutional law who has represented People for the Ethical Treatment of Animals in several ag gag cases (including Iowa’s). He told Bleeding Heartland via email,

The Iowa legislature’s third effort at an Ag-Gag bill is motivated by the same animus and improper motives as the first two efforts – that is a desire to suppress harmful exposes regarding factory farms. This version does not specifically target deceptions or recordings as prior ag-gag laws have, but the legislative history reveals a clear desire to chill investigations. The Senate sponsor decries animal rights groups for targeting industrial agriculture, without any acknowledgement that investigations in Iowa have revealed mass torture by steaming living pigs to death by the thousands earlier this month.

For free speech scholars, the effort to target particular groups and viewpoints, which is evident from the context and history of this bill, evinces the very sort of legislation that the First Amendment is supposed to guard against. It is a transparent effort to limit videos and photos on agricultural properties, as the debate makes clear.

Todd Pettys, a professor of constitutional law at the University of Iowa, thinks plaintiffs will have more trouble getting this law struck down. He commented in response to my inquiry,

Because Section 17 [of Senate File 2413] is framed entirely as a trespass provision, and so applies to a person regardless of whether he or she is trespassing for expressive purposes, I think it would be difficult to persuade a court to declare the law facially invalid on First Amendment grounds. Even if some legislators voted for the bill because they wanted to curb certain kinds of expression, we don’t know that that’s why a majority of the Yes voters that way and, even if we did, they may also have voted for it for reasons having nothing to do with expression (to prevent injuries and contamination, for example).

So, based on what I see here, I’m skeptical about the merits of a First Amendment challenge.

As mentioned above, Judge Gritzner’s December 2019 order enjoining Ag Gag 2.0 cited evidence that “the law’s true purpose is to prohibit undercover investigations,” and was tailored to prevent such investigations.

The new law is much more expansive and could be applied to trespassers who aren’t trying to expose conduct at livestock facilities.

LESS SUPPORT FROM STATEHOUSE DEMOCRATS

Although Senate File 2413 had bipartisan support in both chambers, it received fewer Democratic votes than did the ag gag bills approved in 2012 and 2019. That may be due to problems highlighted during the House debate, which begins around 9:43:45 on this video.

The floor manager Klein, who is also a hog farmer, argued that the trespassing language is needed to protect livestock producers from “people trying to get on farms causing trouble.”

In the past, Klein said, bills had narrowly focused on farms and intent. “We tried to get away from all that. We opened this up a lot more in our definition of food operations. […] It’s all about you have to have permission to be where you’re at. I think it’s a pretty simple concept to have here.” Klein said it doesn’t mean you can’t knock on a farmer’s door. You just can’t enter their livestock building without permission.

Democratic State Representative Mary Wolfe is an attorney who voted for Ag Gag 2.0 last year. But she flagged problems with the bill she saw for the first time only hours before the legislature debated it.

Senate File 2413 requires no intentional wrongdoing. “This bill makes it a crime to be present on certain types of property without an explicit invitation.” It doesn’t require knowledge that you’re not allowed to be on the property. Hypothetically, someone could be charged with an aggravated misdemeanor (carrying a prison sentence of two years) for wandering onto an empty pasture even if they had no idea cows are sometimes grazed there. “I know that’s not the intent, but it makes that a crime.”

Also, Wolfe warned, the broad definition of “food operation” as any place an animal product “is prepared for human consumption” could cover a home kitchen where someone is cooking eggs. A knock on the front door without permission could be construed as an unlawful attempt to gain access. “Now, again, I’m sure that is not the intent,” Wolfe said. But if this law comes before the Iowa Supreme Court, justices will read the definitions in the law and not try to guess what legislators were thinking about. She expressed concern that the bill would be struck down as “overly vague.”

Democratic State Representative Chuck Isenhart brought out other examples of how the language “could be used inappropriately” to charge people with trespassing at a wide range of locations, including grocery stores or schools with kitchens.

The first ag gag bill gained support from sixteen Senate Democrats and twelve House Democrats (listed here) in 2012.

Nine Democrats in the Senate and fourteen in the House (listed here) joined Republicans in approving last year’s bill.

In contrast, just three Senate Democrats–Boulton, Tony Bisignano, and Kevin Kinney–voted for Rozenboom’s amendment adding the trespass language to Senate File 2413. And only five Democrats–those three plus Bill Dotzler and Rich Taylor–voted for the bill on final passage in the upper chamber.

Eight House Democrats joined GOP colleagues in approving the latest bill: Dennis Cohoon, Karin Derry, Kenan Judge, Tim Kacena, Andy McKean, Rick Olson, Scott Ourth, and Todd Prichard. Most of them had also supported the 2019 legislation. Several represent districts Republicans will target in November.

Only one Iowa Republican lawmaker has ever voted against an ag gag proposal. State Representative Jeff Shipley opposed the new agricultural trespass language. He was a no vote on the 2019 legislation as well.

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