Animal Legal Defense Fund et al v. Reynolds et al

Filing 79

ORDER granting 49 Plaintiffs' Motion for Summary Judgment; denying 57 Defendants' Motion for Summary Judgment. The remaining due process claim in Count III is dismissed. On the issues of specific injunctive relief and the claim for legal fees, the Court will await additional briefing by the parties. See order for particulars. Signed by Senior Judge James E. Gritzner on 1/9/2019. (nlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF IOWA
CENTRAL DIVISION
ANIMAL LEGAL DEFENSE FUND; IOWA
CITIZENS FOR COMMUNITY IMPROVEMENT;
BAILING OUT BENJI; PEOPLE FOR THE
ETHICAL TREATMENT OF ANIMALS, INC.;
and CENTER FOR FOOD SAFETY,
4:17-cv-00362–JEG-HCA

Plaintiffs,
vs.
KIMBERLY REYNOLDS, GOVERNOR; TOM
MILLER, ATTORNEY GENERAL OF IOWA;
and BRUCE E. SWANSON, MONTGOMERY
COUNTY ATTORNEY,

ORDER

Defendants.
This matter is before the Court on cross-motions for summary judgment. Plaintiffs Animal
Legal Defense Fund (ALDF), Iowa Citizens for Community Improvement (CCI), Bailing Out
Benji, People for the Ethical Treatment of Animals, Inc. (PETA), and Center for Food Safety
(CFS) (collectively, Plaintiffs), filed the first motion, ECF No. 49, which Defendants resist.
Defendants Kimberly Reynolds, Tom Miller, and Bruce Swanson (collectively, Defendants),
filed the second motion, ECF No. 57, which Plaintiffs resist. The parties agree that this matter is
appropriate for resolution by summary judgment with each contending they are entitled to
judgment as a matter of law. No party requested a hearing, and the Court finds a hearing
unnecessary. The matter is fully submitted and ready for disposition.
I.

BACKGROUND1
Iowa created the crime of “agricultural production facility fraud,” Iowa Code § 717A.3A,

in 2012, on the heels of several industrial farm investigations that brought critical national
1

The facts set forth here are either not in dispute or viewed in the light most favorable to
the nonmoving party. See Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011)
(en banc).
1

attention to Iowa’s agricultural industry. For example, in 2011, an undercover investigation at
Iowa Select Farms produced reports of workers hurling small piglets onto a concrete floor.2
Another investigation at Iowa’s Sparboe Farms, documented reported mistreatment of hens and
chicks.3 And yet another, conducted by PETA, exposed workers at a Hormel Foods supplier in
Iowa “beating pigs with metal rods,” “sticking clothespins into pigs’ eyes and faces, and a supervisor kicking a young pig in the face, abdomen, and genitals to make her move while telling the
investigator, ‘You gotta beat on the bitch. Make her cry.’” Jeffrey S. Kerr Aff. ¶ 14, Pls.’ App.
14, ECF No. 49-2. PETA’s investigation, if not also the others, was an undercover, employment-based investigation in which the investigator also performed tasks assigned by
the employer.
While the results of these investigations were being circulated by news media, the Iowa
legislature considered H.F. 589, § 2 (Iowa 2012), which would eventually become § 717A.3A.
Lawmakers described the bill as being responsive to two primary concerns of the agricultural
industry: facility security (both in terms of biosecurity and security of private property) and
harms that accompany investigative reporting.4 For example, as to security, then-Representative

2

Pls.’ Br. 5, ECF No. 53 (citing Anne-Marie Dorning, Iowa Pig Farm Filmed, Accused of
Animal Abuse, ABC News (June 29, 2011), https://abcnews.go.com/Business/iowa-pig-farmfilmed-accused-animal-abuse/story?id=13956009).
Pls.’ Br. 3, ECF No. 53 (citing McDonald’s Cuts Egg Supplier After Undercover Animal
Cruelty Video, L.A. Times (Nov. 18, 2011, 2:24 PM), https://latimesblogs.latimes.com
/money_co/2011/11/mcdonalds-cuts-egg-supplier-after-undercover-animal-cruelty-video.html).
3

4

To establish the existence of these concerns, the parties provided statements by lawmakers who were members of the Iowa legislature during the debate and passage of § 717A.3A.
See Pls.’ SUF ¶¶ 78-82, ECF No. 49-1; Defs.’ SUF ¶¶ 1-7, ECF No. 57-1. Where other courts
have relied upon similar types of statements by lawmakers, it has been for the limited purpose of
providing history to enactment of a law, see, e.g., Animal Legal Def. Fund v. Wasden, 878 F.3d
1184, 1191-92 (9th Cir. 2018); Animal Legal Def. Fund v. Herbert, 263 F. Supp. 3d 1193, 1198
(D. Utah 2017), or assessing whether the state’s proffered interest served by the law was the
actual interest served, see, e.g., Herbert, 263 F. Supp. 3d at 1212. In the absence of formalized
legislative history, and because this Court conducts no animus analysis that could require

2

Annette Sweeney provided: “With this bill we want to make sure everybody involved in our
livestock facilities and working within in those facilities is forthright, and want to make sure our
livestock is being kept safe,”5 and then-Senate President John “Jack” Kibbie supported an early
draft of the bill because “[t]here’s viruses that can put these producers out of business, whether
it’s cattle, hogs or poultry.”6 As to reputational harms, former Senator Tom Rielly commented
on a draft version of the bill: “What we’re aiming at is stopping these groups that go out and
gin up campaigns that they use to raise money by trying to give the agriculture industry a
bad name.”7
The bill, signed into law on March 2, 2012, amended chapter 717A of the Iowa Code,
which already prohibited disrupting, destroying, or damaging property at an animal facility, id.
§ 717A.2 (2003), or on crop operation property, id. § 717A.3 (2001), and also the use of pathogens to threaten animals and crops, id. § 717A.4 (2004). The new addition provides that a
person commits “agricultural production facility fraud” if the person willfully:
a.

Obtains access to an agricultural production facility by false pretenses[, or]

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.

reliance on legislative commentary, see infra note 13, the Court’s use of the lawmakers’
statements is similarly limited to illustrating the background for the current legal dispute.
Defs.’ SUF ¶ 4, ECF No. 57-1 (quoting Paul Yeager, “Ag Gag” Bill Passes Iowa
Legislature, Iowa Pub. Television, (Mar. 2, 2012), http://www.iptv.org/mtom /story/13293/aggag-bill-passes-iowa-legislature).
5

Defs.’ SUF ¶ 5, ECF No. 57-1 (quoting Amanda Peterka, State Legislatures Take Up
Bills Barring Undercover Videos of Confined Animal Feeding Operations, N.Y. Times, (May 5,
2011), https://archive.nytimes.com/www.nytimes.com/gwire/2011/05/05/05greenwire-statelegislatures-take-up-bills-barring-under-88103.html).
6

Pls.’ SUF ¶ 79, ECF No. 49-1 (quoting Mike Wesier, Iowa May be First to Ban Secret
Video on Farms, Sioux City Journal (May 22, 2011), https://bit.ly/2kYYA9L).
7

3

Iowa Code § 717A.3A (2012). A first conviction under § 717A.3A is a serious misdemeanor,
and a second or subsequent conviction is an aggravated misdemeanor. Id. § 717A.3A(2). A
person can also be held criminally liable for conspiring to violate this statute, aiding and abetting
a violation, or harboring, aiding, or concealing the person committing the violation, “with the
intent to prevent the apprehension of the person.” Id. § 717A.3A(3)(a). The law has the effect of
criminalizing undercover investigations of certain agricultural facilities, including those mentioned above, and those of interest to the general public, such as puppy mills.8
Iowa Code § 717A.3A is similar, and in parts identical, to other states’ laws that prohibit
conduct and speech related to agricultural operations. In fact, Iowa is one of many states that
have passed or attempted to pass such legislation in the last decade. See, e.g., Animal Legal Def.
Fund v. Herbert, 263 F. Supp. 3d 1193, 1196-98 (D. Utah 2017) (providing a brief history of
similar proposed and enacted legislation across the country). Of those in effect, several have
been invalidated or limited based on First Amendment challenges. See W. Watersheds Project v.
Michael, No. 15-CV-169-SWS, 2018 WL 5318261, at *10 (D. Wyo. Oct. 29, 2018) (invalidating, in part, a Wyoming statute criminalizing entry on private land for the purpose of resource
data collection relating to land use, including animal species, as facially unconstitutional under
the First Amendment); Herbert, 263 F. Supp. 3d at 1211-13 (finding a Utah law, very similar to
Iowa’s law, criminalizing acts of obtaining access to agricultural operations under false pretenses
and recording images at such operations under false pretenses, to be facially unconstitutional

An “agricultural production facility” is any “location where an agricultural animal is
maintained for agricultural production purposes, including but not limited to a location dedicated
to farming . . . , a livestock market, exhibition, or a vehicle used to transport the animal,” as well
as animal research locations, veterinary facilities, kennels, and pet shops. Id. § 717A.1(3), (5).
An “agricultural animal” is defined as “[a]n animal that is maintained for its parts or products
having commercial value.” Id. § 717A.1(1)(a).
8

4

under the First Amendment); Animal Legal Def. Fund v. Otter, 118 F. Supp. 3d 1195, 1200-09
(D. Idaho 2014) (finding an Idaho law criminalizing interference with agricultural production
facilities to be facially unconstitutional under the First Amendment), aff’d in part, rev’d in part
sub nom. Animal Legal Def. Fund v. Wasden, 878 F.3d 1184 (9th Cir. 2018) (reversing as to the
portion of the law related to offers of employment).
Plaintiffs and their amici—Iowa Freedom of Information Council and Iowa Center for
Public Affairs Journalism—frame this legislative trend within the context of an on-going tension
between members of the news media and the agricultural industry. The amici describe an
American public eager to consume news about the food they eat, and a responsive group of
defenders of the agricultural industry, understandably eager to have the news about them be
positive, who have worked “to suppress any unflattering coverage of inhumane slaughterhouse
practices, unsanitary factory conditions and worker abuses” through legislation such as
§ 717A.3A. Amici Curiae Br. 3, ECF No. 73. Plaintiffs and their amici argue that lawmakers,
finding the First Amendment in the way of attempts to directly halt publication of these abuses,
see, e.g., New York Times Co. v. United States, 403 U.S. 713 (1971), have attempted to suppress
information from reaching the press “by prosecuting newsgathering activities that serve as the
foundation of investigative journalism,” Amici Curiae Br. 3, ECF No. 73; Pls.’ Br. 1, ECF No.
53. Defendants counter that § 717A.3A is about defending the private property rights of Iowans
who own agricultural facilities.
A. The Parties
Plaintiffs are non-profit organizations that engage in advocacy and investigative work
related to animal cruelty, wellbeing of workers, and safety of food supply. They state they
would like to conduct undercover investigations, or use the results of others’ investigations, but

5

have not done so given the threat § 717A.3A would be enforced against them. Plaintiffs
challenge § 717A.3A, arguing it impermissibly restricts their free speech under the First
Amendment. Defendants are the Governor of Iowa, the Attorney General of Iowa, and the
County Attorney for Montgomery County, who are sued in their official capacities and defend
the constitutionality of § 717A.3A, arguing there is no First Amendment right to engage in the
conduct prohibited by the statute.
B. Procedural History
Plaintiffs filed their Complaint on October 10, 2017, alleging that § 717A.3A is facially
unconstitutional as a content-based, viewpoint-based, and overbroad regulation. Plaintiffs
asserted claims under the First Amendment, and the Equal Protection and Due Process Clauses
of the Fourteenth Amendment.
Defendants filed a Motion to Dismiss on December 8, 2017, under Federal Rules of Civil
Procedure 12(b)(1) and (b)(6), arguing the Plaintiffs lacked standing to bring their claims, and
alternatively, that the Plaintiffs failed to state claims under either the First or the Fourteenth
Amendments. On February 27, 2018, this Court ruled on the motion, finding the Plaintiffs had
standing, dismissed their Equal Protection claim, and denied the motion in all other respects.
Animal Legal Def. Fund v. Reynolds, 297 F. Supp. 3d 901, 907-30 (S.D. Iowa 2018). Plaintiffs
filed a Motion for Summary Judgment on June 22, 2018, ECF No. 49, which Defendants resist.
Defendants filed a Cross-Motion for Summary Judgment on July 13, 2018, ECF No. 55, which
Plaintiffs resist.
II.

DISCUSSION
A. Jurisdiction
Because Plaintiffs bring this action under a federal statute, 42 U.S.C. § 1983, which

provides relief based on violations of the United States Constitution, this Court has original
6

jurisdiction over the claims asserted pursuant to 28 U.S.C. § 1331. Venue is proper pursuant to
28 U.S.C. § 1391(b) because the events giving rise to the claims occurred within this district.
B. Standing
As noted, Defendants previously moved to dismiss this case on standing grounds. Defendants argued Plaintiffs failed to establish an injury in fact. In a lengthy discussion of organizational standing, the Court found Plaintiffs had standing. Reynolds, 297 F. Supp. 3d at 912-17.
The Court reasoned that Plaintiffs properly alleged an injury in fact that arose from the potential
enforcement of § 717A.3A, which was fairly traceable to the conduct Plaintiffs sought to enjoin,
and that the relief requested would redress the alleged injuries in fact by removing the threat of
legal sanction, allowing Plaintiffs to reallocate resources. Id. Recognizing this Court’s ruling on
standing, Defendants do not contest standing for purposes of summary judgment, but preserve
the issue for any appeal. See Defs.’ Cross-Mot. Br. 5 n.1, ECF No. 58-1. The Court will not
repeat its standing findings, but incorporates them herein. Reynolds, 297 F. Supp. 3d at 912-17.9

9

In asserting Plaintiffs lacked standing, Defendants relied on People for the Ethical Treatment of Animals, Inc. v. Stein, 259 F. Supp. 3d 369 (M.D.N.C. 2017), rev’d per curiam, 737 F.
App’x 122, 130-31 (4th Cir. 2018) (unpublished), arguing Plaintiff’s claimed injuries were
similarly too remote and speculative to support standing. The public interest organizational
plaintiffs in Stein challenged a North Carolina law that created a civil cause of action against a
person who “intentionally gains access to the nonpublic areas of [another’s] premises and
engages in an act that exceeds the person’s authority.” Id. at 372 (quoting N.C. Gen. Stat.
§ 99A–2(a)). The district court in Stein found the plaintiffs lacked standing, reasoning the state
was not required to enforce non-criminal laws, thus private enforcement of the law against
plaintiffs was premature and speculative. Id. at 383-84. While this Court found, and still
maintains, that Stein is materially distinguishable from the present case based on the nature of
the sanction alone, see Reynolds, 297 F. Supp. 3d at 913-14, it is noteworthy that subsequent to
this Court’s February 27 Order, the Fourth Circuit Court of Appeals reversed and remanded
Stein, holding plaintiffs sufficiently alleged an actual and well-founded fear that the North
Carolina law would be enforced against them, see Stein, 737 F. App’x at 130-31.

7

C. Summary Judgment Standard
The Federal Rules of Civil Procedure authorize “motions for summary judgment upon
proper showings of the lack of a genuine, triable issue of material fact.” Celotex Corp. v. Catrett,
477 U.S. 317, 327 (1986). Under Rule 56(c), summary judgment is proper “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); Gerlich v. Leath, 861 F.3d 697,
704 (8th Cir. 2017). On cross-motions for summary judgment, the Court evaluates each motion
independently to determine whether there exists a genuine dispute of material fact and whether
each movant is entitled to judgment as a matter of law. Sam’s Riverside, Inc. v. Intercon Sols.,
Inc., 790 F. Supp. 2d 965, 975 (S.D. Iowa 2011).
D. The First Amendment Claims10
Through its “sometimes inconvenient principles,” the First Amendment limits the government’s ability to make laws that restrict speech. United States v. Alvarez, 567 U.S. 709, 715
(2012) (plurality); see U.S. Const. amend I. Under the First Amendment, the “government has
no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Ashcroft v. ACLU, 535 U.S. 564, 573 (2002) (quoting Bolger v. Youngs Drug Prods.
Corp., 463 U.S. 60, 65 (1983)). The First Amendment does not protect all speech, “but if a law
restricts speech that is protectable, the State must justify the law by articulating the problem it is
meant to address and demonstrating that the law is properly tailored to address that problem.”
Herbert, 263 F. Supp. 3d at 1200.

10

Defendants, in their capacities as officials of the State of Iowa, are properly subject to
Plaintiffs’ claims under the First Amendment, as incorporated by the Fourteenth Amendment.
See Murdock v. Pennsylvania, 319 U.S. 105, 108 (1943).

8

Plaintiffs maintain § 717A.3A violates the First Amendment in two ways. First, it is a
content- and viewpoint-based speech restriction that fails to withstand judicial scrutiny; and
second, it is overbroad.11 Defendants contend that § 717A.3A regulates conduct, not speech; and
to the extent § 717A.3A regulates speech, it only prohibits false statements that do not receive
First Amendment protection. Defendants alternatively argue that if § 717A.3A does regulate
protected speech, the law can withstand intermediate scrutiny.
1. Judicial Scrutiny Analysis
Generally, a free speech challenge proceeds in three stages. Id. at 1201. First, the Court
resolves whether the challenged statute implicates protected speech. Id. If it does, the Court
determines what level of scrutiny applies. Id. Then, the Court applies the appropriate scrutiny
and confirms whether the statute satisfies the applicable standard. Id.
a. Protected Speech
The Court resolved the first question in a prior order. Speech is necessarily implicated by
§ 717A.3A because “one cannot violate § 717A.3A without engaging in speech,” Reynolds, 297
F. Supp. 3d at 918. The speech implicated is false statements and misrepresentations.

11

In their Complaint, Plaintiffs request, inter alia, the Court (1) declare Iowa Code
§ 717A.3A unconstitutional on its face and as applied to Plaintiffs, (2) permanently enjoin
Defendants from enforcing the statute, and (3) strike down the challenged statute in its entirety.
Although Plaintiffs describe their challenge as both facial and as applied, “[t]he label is not what
matters.” John Doe No. 1 v. Reed, 561 U.S. 186, 194 (2010). “The important point is that plaintiffs’ claim and the relief that would follow—[as outlined above and in Plaintiffs’ Complaint]—
reach beyond the particular circumstances of these plaintiffs. They must therefore satisfy our
standards for a facial challenge to the extent of that reach.” Id. While facial challenges under
the First Amendment have, in some cases, been discouraged, see Republican Party of Minn.,
Third Cong. Dist. v. Klobuchar, 381 F.3d 785, 791 (8th Cir. 2004), the Court finds it appropriate
in this case, as in the similar cases collected supra Part I.
9

To some degree, the concept of constitutional protection for speech that is false may be
disquieting. However, as the Supreme Court has reasoned, “[t]he Nation well knows that one of
the costs of the First Amendment is that it protects the speech we detest as well as the speech we
embrace.” Alvarez, 567 U.S. at 729-30 (noting “few might find [the defendant]’s statements
anything but contemptible,” yet “his right to make those statements is protected by the Constitution’s guarantee of freedom of speech and expression”). Further, not all false statements are
protected speech. Id. at 721-22.
Ultimately, in assessing falsehoods in this context, the Court engages in a legal, not moral,
analysis. The Supreme Court has recognized that “some false statements are inevitable if there is
to be an open and vigorous expression of views in public and private conversation, expression
the First Amendment seeks to guarantee.” Id. at 718. Therefore, false statements will be protected by the First Amendment only if they do not cause a “legally cognizable harm” or provide
“material gain” to the speaker. Id. at 718, 723. And, as the Court has already explained, the
false statements implicated by § 717A.3A are protected speech because they do not cause either.
Reynolds, 297 F. Supp. 3d at 920-24 (discussing Alvarez, 567 U.S. at 717-35).
Previously, Defendants offered argument to the contrary, none of which persuaded the
Court.12 Defendants now indicate they “respectfully reassert their prior arguments . . . in the

12

Notably, Defendants assert, as they did on their motion to dismiss, that the First Amendment cannot be used to trample private property rights, nor as a defense to the trampling of
private property rights. They express concern for the private property owner’s ability to exclude
individuals without the aid of this law. As to using the First Amendment as a defense, this line
of argument applies to those who violate a content-neutral law (e.g., generic trespass) and ask for
shelter under the First Amendment. See, e.g., Food Lion, Inc. v. Capital Cities/ABC, Inc., 194
F.3d 505, 516 (4th Cir. 1999). While that defense was discussed in regard to the motion to
dismiss, see Reynolds, 297 F. Supp. 3d at 920-21, the scrutiny analysis of § 717A.3A is different
than the Court’s prior analysis on the motion to dismiss because the challenged law is not one of
general applicability, as explained infra Part II.D.1.b. Defendants’ other argument, that without
the aid of this law, private property rights would be wasted, is similarly inapplicable.

10

hope that the Court will view the arguments in a new light.” Defs.’ Comb. Br. 6, ECF No. 58-1.
The Court, finding no reason to diverge and declining to do so, reaffirms its prior legal findings.
Iowa Code § 717A.3A implicates protected speech.
b. Scrutiny
“Content-based laws—those that target speech based on its communicative content—are
presumptively unconstitutional and may be justified only if the [state] proves that they are
narrowly tailored to serve compelling state interests.” Reed v. Town of Gilbert, Ariz., 135 S. Ct.
2218, 2226 (2015). In its prior order, the Court determined that “[b]oth regulations contained
within § 717A.3A are content-based on their face.” Reynolds, 297 F. Supp. 3d at 919. Iowa’s
“enforcement authorities must necessarily examine the content” of an individual’s statement to
determine whether the individual violates the statute. See FCC v. League of Women Voters of
Cal., 468 U.S. 364, 383 (1984). Not only must enforcement authorities know the content of the
speech, but they must know the content’s veracity. Iowa Code § 717A.3A is thus a contentbased regulation.13
Given that § 717A.3A is a content-based regulation, the Court must now determine the
appropriate level of scrutiny. The First Amendment requires heightened scrutiny whenever the
state creates “a regulation of speech because of disagreement with the message it conveys.”
Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). “In assessing content-based restrictions on protected speech, the Court has not adopted a free-wheeling approach, but rather has
applied the ‘most exacting scrutiny.’” Alvarez, 567 U.S. at 724 (citation omitted) (quoting
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642 (1994)). That is, a statute that is content

13

The parties provided argument as to whether § 717A.3A is also viewpoint-based, relying
heavily on legislative commentary. Having found that the law is a content-based regulation on
its face, there is “no need to consider the [state]’s justifications or purposes for enacting the [law]
to determine whether it is subject to strict scrutiny.” Reed, 135 S. Ct. at 2227.
11

based on its face, as § 717A.3A is here, must be able to survive strict scrutiny. Reed, 135 S. Ct.
at 2228.
Defendants urge the Court to apply intermediate scrutiny, stating that the concurring
opinion in Alvarez is controlling. See Marks v. United States, 430 U.S. 188, 193 (1977) (“When
a fragmented Court decides a case and no single rationale explaining the result enjoys the assent
of five Justices, the holding of the Court may be viewed as that position taken by those Members
who concurred in the judgments on the narrowest grounds.” (citation and internal quotation
marks omitted)). Plaintiffs, also referencing Alvarez, contend that strict scrutiny is the correct
standard to apply. The parties’ divergent interpretations of Alvarez, and how it should apply to
this case, are understandable given that Alvarez was a plurality decision.
In Alvarez, the United States Supreme Court examined the Stolen Valor Act (“the Act”),
which made it a crime for anyone to “falsely represent himself or herself” as having been
awarded any decoration or medal authorized for the Armed Forces of the United States. Alvarez,
567 U.S. at 715. The defendant, Alvarez, falsely boasted during a public meeting that he was
awarded the Congressional Medal of Honor and was subsequently convicted of violating the Act.
Id. at 714. The Supreme Court invalidated the conviction and struck down the Act on First
Amendment grounds. Id. at 715.
The Court’s decision was fragmented, which has led to the somewhat uncertain legal
framework for analyzing regulations that proscribe false speech.14 Justice Kennedy wrote on

14

In 281 Care Comm. v. Arneson (281 Care Comm. II), 766 F.3d 774 (8th Cir. 2014), the
Eighth Circuit determined that neither the plurality, nor the concurring opinion in Alvarez, controlled the level of scrutiny that should be applied to a Minnesota law criminalizing false campaign speech. Instead, the Arneson court held that the statute must be subject to strict scrutiny
because political speech “occupies the core of the protection afforded by the First Amendment.”
Id. at 784. In deciding that Alvarez did not control the level of scrutiny, the court explained that
“it was largely (if not solely) because the regulation at issue in Alvarez concerned false

12

behalf of a four-Justice plurality, which found the Act was not narrowly tailored as strict scrutiny
required. Id. at 729-30. Justice Breyer, who was joined by Justice Kagan, concurred in the
judgment, but rejected the plurality’s “strict categorical analysis,” and instead applied a form of
intermediate scrutiny. Id. at 730 (Breyer, J., concurring). Justice Breyer determined the Act
could not survive intermediate scrutiny because “the statute work[ed] First Amendment harm,
while the Government [could] achieve its legitimate objectives in less restrictive ways.” Id.
Justice Breyer recognized that strict scrutiny was necessary in some cases, id. at 731-32, but he
found intermediate scrutiny more appropriate where “dangers of suppressing valuable ideas are
lower,” such as when “the regulations concern false statements about easily verifiable facts that
do not concern” more complex subject matter. Id. at 732.
Based upon the regulation of false statements involved in the present case, this Court need
not determine whether the plurality opinion or the concurring opinion in Alvarez is controlling.
See Marks, 430 U.S. at 193. This Court, as have other courts considering similar statutes,
reaches the same conclusion under either strict or immediate scrutiny. See, e.g., Wasden, 878
F.3d at 1197-98 (applying strict scrutiny and intermediate scrutiny to a law similar to
§ 717A.3A(a)); Herbert, 263 F. Supp. 3d at 1209-10 (applying strict scrutiny).
c. Application of Scrutiny
i. Strict Scrutiny
When the state seeks to regulate protected speech, it bears the heavy burden of showing
that the prohibition satisfies constitutional scrutiny. Alvarez, 567 U.S. at 726. This burden is
“for good reason” because “were we to give the Government the benefit of the doubt when it

statements about easily verifiable facts that did not concern subjects often warranting greater
protection under the First Amendment, that the concurring Justices applied intermediate
scrutiny.” Id. (citing Alvarez, 567 U.S. 731-32 (Breyer, J., concurring)). Precedents on “the
regulation of political speech,” and not Alvarez, “dictate[d] the level of scrutiny” applicable to
its analysis of the Minnesota law. Id. (emphasis added).
13

attempted to restrict speech, we would risk leaving regulations in place that sought to shape our
unique personalities or to silence dissenting ideas.” United States v. Playboy Entm’t Grp., Inc.,
529 U.S. 803, 818 (2000). Therefore, under strict scrutiny, a content-based law is presumptively
unconstitutional and will be justified only if the state proves that the law is narrowly tailored to
serve a compelling state interest. Id. at 813.
Plaintiffs argue § 717A.3A cannot survive strict scrutiny. Defendants make no attempt to
directly argue otherwise, but instead focus on all the reasons why strict scrutiny should not
apply. Defendants have not met their burden.
Defendants contend § 717A.3A protects the state’s interests of private property and
biosecurity. As factual support, they provide the statements of three lawmakers and thenGovernor Branstad. As a preliminary matter, the record makes clear that these were not the only
reasons motivating the enactment of § 717A.3A. Rather, as discussed above, and as admitted by
Defendants, some lawmakers also wanted to stop “subversive acts” by “groups that go out and
gin up campaigns . . . to give the agricultural industry a bad name.”15 Pls.’ SUF ¶¶ 79-80, ECF
No. 49-1. Other statements in the record illustrate that § 717A.3A serves the interest of protecting Iowa’s agricultural industry from perceived harms flowing from undercover investigations of its facilities.
However, accepting Defendants’ argument that property and biosecurity are the state’s
actual interests protected by § 717A.3A, the Court is persuaded these interests are important; but
they are not compelling in the First Amendment sense. Herbert, 263 F. Supp. 3d at 1211-12
(assuming, despite record evidence to the contrary, that the state’s proffered interests—
protection from spread of disease; injury to animals and workers caused by unauthorized

15

See supra note 4.
14

actions—were the actual reasons for enacting the statute, but finding that the harms targeted
were “entirely speculative,” and therefore could not be considered compelling); Otter, 118 F.
Supp. 3d at 1207-08 (finding the state’s “interest in protecting personal privacy and private
property” to be important, but not compelling; furthermore, “even if the [s]tate’s interest in
protecting the privacy and property of agricultural facilities was ‘compelling’ in the First
Amendment sense, [the statute] [wa]s not narrowly drawn to serve those interests”).
Even if the state’s proffered interests are compelling, § 717A.3A’s prohibitions are not
narrowly tailored to serve either interest. If the state is going to restrict protected speech, the
restriction must be “actually necessary” to achieve the state’s compelling interest. Alvarez, 567
U.S. at 725 (quoting Brown v. Enter. Merchs. Ass’n, 564 U.S. 786, 799 (2011)). A prohibition is
actually necessary if there is a “direct causal link between the restriction imposed and the injury
to be prevented.” Id.
Defendants have produced no evidence that the prohibitions of § 717A.3A are actually
necessary to protect perceived harms to property and biosecurity. Id. at 726-27 (stating that the
government’s reliance on “common sense” and not “evidence to support its claim” fails to
establish the causal link necessary to show narrow tailoring); 281 Care Comm. II, 766 F.3d at
790 (“Even though the effect of election fraud or detecting the fraud itself, arguably, is a bit
more amorphous and difficult to detect, only relying upon common sensibilities to prove it is
taking place still falls short.”). 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. Nor, in the absence of any record to the contrary, will the Court
assume that biological harm turns on a human vector making a false statement unrelated to such
harm in order to gain access to the facility. Protecting biosecurity is therefore purely speculative

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and cannot constitute a compelling state interest. 218 Care Comm. II, 766 F.3d at 787 (rejecting
the state’s reliance on “common sense” instead of “empirical evidence”); Herbert, 263 F. Supp.
3d at 1212 (finding that a Utah law, which is almost identical to § 717A.3A(1)(a), was not
“actually necessary” to achieve the state’s interests of health and safety of employees and
animals because the state offered no evidence that those interests were in danger, nor that the law
would remedy those dangers).
Further, “[t]o meet the requirement of narrow tailoring, the government must demonstrate
that alternative measures that burden substantially less speech would fail to achieve the government’s interests, not simply that the chosen route is easier.” McCullen v. Coakley, 134 S. Ct.
2518, 2540 (2014). “The existence of content neutral alternatives to” protect property rights and
biosecurity, “‘undercut[s] significantly’ the defenses raised to the statutory content.” Survivors
Network of Those Abused by Priests, Inc. v. Joyce, 779 F.3d 785, 793-94 (8th Cir. 2015) (alteration in original) (quoting R.A.V. v. City of St. Paul, 505 U.S. 377, 395 (1992)). The Court need
not look far to learn that both the state’s proffered interests could be served by alternative
measures. As to private property and trespass concerns, an already existing section of Chapter
717A of the Iowa Code provides that persons “shall not, without the consent of the owner” do
various acts, including entering the facility to disrupt or otherwise harm the operation. Iowa
Code § 717A.2. With similar interests in mind, the state could also rely upon Iowa’s existing
trespass law, Iowa Code § 716.7(2), to protect its proffered interests without chilling speech.16
See Wasden, 878 F. 3d at 1196. Biosecurity is effectively and appropriately protected by the last

Defendants argue that the trespass statute’s penalties are clearly insufficient to prohibit
trespass because the plaintiff-organizations did not seem to be deterred by them. This argument
still fails to explain how amendment of the trespass statute would not adequately deter the
behavior without suppressing speech. Therefore, Defendants fail to explain why the trespass law
is insufficient to serve the interest of protecting property. McCullen, 134 S. Ct. at 2540.
16

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section of Chapter 717A, which prohibits the willful possession, transportation, or transfer of “a
pathogen with an intent to threaten the health of an animal or crop.” See Iowa Code § 717A.4.
Not only is § 717A.3A unnecessary to protect the state’s interests, it is also an underinclusive means by which to address them. “Where a regulation restricts a medium of speech in
the name of a particular interest but leaves unfettered other modes of expression that implicate
the same interest, the regulation’s underinclusiveness may ‘diminish the credibility of the
government’s rationale for restricting speech in the first place.’” Johnson v. Minneapolis Park &
Recreation Bd., 729 F.3d 1094, 1100 (8th Cir. 2013) (quoting City of Ladue v. Gilleo, 512 U.S.
43, 52 (1994)). That is, an underinclusive prohibition should raise “serious doubts about whether
the government is in fact pursuing the interest it invokes, rather than disfavoring a particular
speaker or viewpoint.” Brown, 564 U.S. at 802. Here, § 717A.3A does nothing to deter the
exact same alleged harms—trespass and biosecurity breaches—from individuals who proceed to
access or enter a facility without false pretense or misrepresentation.
The prohibition is also overinclusive due to its lack of sufficient limitations. Section
717A.3A(1)(a) includes no limiting features whatsoever, allowing it to apply even to the most
innocent of circumstances. Cf. Alvarez, 567 U.S. at 736-37 (Breyer, J., concurring) (finding
under intermediate scrutiny that the lack of any “limiting features” should lead the court to
believe that the statute “risks significant First Amendment harm”). By Defendants’ own
admission, § 717A.3A(1)(b) sweeps more broadly than a similar statute under Idaho law. See
Wasden, 878 F.3d at 1201 (finding an Idaho law, which prohibited an individual from obtaining
“employment with an agricultural production facility by force, threat, or misrepresentation with
the intent to cause economic or other injury” was not subject to judicial scrutiny (emphasis

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added)).17 Here, Defendants argue that § 717A.3A’s more expansive limiting feature should not
be problematic because the language codifies the duty of loyalty, which they say provides that a
“servant must do nothing hostile to the master’s interest.” Defs.’ Comb. Br. 19, ECF No. 58-1
(quoting Condon Auto Sales & Serv., Inc. v. Crick, 604 N.W.2d 587, 599 (Iowa 1999)). But,
something not authorized is not necessarily something hostile to the master’s interest. An
employer can choose not to authorize a wide variety of conduct, none of which may actually
result in a breach of the employee’s duty of loyalty (or cause harm). Here, Defendants seek to
greatly expand the reach of the duty of loyalty. The Iowa Supreme Court has cautioned that even
a civil cause of action based on the breach of the duty of loyalty must be limited in scope.
Condon, 604 N.W.2d at 600 (“[E]ven in those jurisdictions which recognize a cause of action for
breach of loyalty, the action is limited in scope. A broad cause of action would give employers
more protection than needed and could create an unfair advantage.”). To the extent that a
violation of § 717A.3A can be likened to the common law breach of a duty of loyalty, to
criminalize such a breach goes far beyond what is necessary to protect the state’s interests and
allows for expansive prosecution.
ii. Intermediate Scrutiny
Even if the Court applies the type of intermediate scrutiny advocated for by Justice Breyer
and Defendants, Iowa Code § 717A.3A still fails. By its own terms, § 717A.3A “criminalizes
speech that inflicts no ‘specific harm’ on property owners, ‘ranges very broadly,’ and risks
significantly chilling speech that is not covered under the statute.” Wasden, 878 F. 3d at 1198
(quoting Alvarez, 567 U.S. at 736-37 (Breyer, J., concurring)). While the First Amendment

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The Court already discussed Wasden in length, finding it largely unpersuasive as to
§ 717A.3A(1)(b). See Reynolds, 297 F. Supp. 3d at 924-25.
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doctrine permits the regulation of some categories of lies—those that cause a legally cognizable
harm or material gain—it does not permit § 717A.3A, which is so broad in its scope, it is already
discouraging the telling of a lie in contexts where harm is unlikely and the need for prohibition is
small. The right to make the kinds of false statements implicated by § 717A.3A—whether they
be investigative deceptions or innocuous lies—is protected by our country’s guarantee of free
speech and expression. Alvarez, 567 U.S. 729-30. For all of these reasons, Iowa Code
§ 717A.3A fails to survive judicial scrutiny.18
E. The Fourteenth Amendment Due Process Claim
Defendants assert they are entitled to summary judgment as to a remaining due process
claim. Plaintiffs do not provide argument on this issue. The Court’s prior order clarified that
Count III of the Complaint, brought under the Fourteenth Amendment, included two theories,
one under the Due Process Clause and the other under the Equal Protection Clause. The Court
dismissed the portion of Count III alleged pursuant to the Equal Protection Clause and found the
portion alleged pursuant to the Due Process Clause was subsumed by Plaintiffs’ Count I, under
the First Amendment. Reynolds, 297 F. Supp. 3d at 926 (“The above discussion concerning
First Amendment protection for the speech prohibited by § 717A.3A addresses the former
theory, as the First Amendment only applies to Defendants via the Fourteenth Amendment.”).
The First Amendment fully addresses the claim, which cannot simultaneously survive as a
Fourteenth Amendment due process claim. See Albright v. Oliver, 510 U.S. 266, 273 (1994)

Plaintiffs invoke the First Amendment’s overbreadth doctrine in Count II of their
Complaint. Because the Court has already found § 717A.3A constitutionally invalid, it is
unnecessary to determine whether the statute can survive overbreadth analysis. See United
States v. Stevens, 559 U.S. 460, 473 (2010) (indicating that traditional facial analysis and
overbreadth analysis are alternatives); Rideout v. Gardner, 838 F.3d 65, 72 n.5 (1st Cir. 2016)
(“Because the statute fails under intermediate scrutiny, we also need not reach the plaintiffs’
argument that the statute fails under the overbreadth doctrine.”).
18

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(“Where a particular Amendment provides an explicit textual source of constitutional protection
against a particular sort of government behavior, that Amendment, not the more generalized
notion of substantive due process, must be the guide for analyzing these claims.” (citation and
internal quotation marks omitted)). Therefore, Count III is now dismissed as moot.
III. CONCLUSION
Based on the foregoing, Plaintiffs’ Motion for Summary Judgment, ECF No. 49, must be
granted, Defendants’ Motion for Summary Judgment, ECF No. 57, must be denied, and the
remaining due process claim in Count III must be dismissed.
On the issues of specific injunctive relief and the claim for legal fees, the Court will await
additional briefing by the parties.
IT IS SO ORDERED.
DATED this 9th day of January, 2019.

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