On several occasions, the latest being March 27, 2019, we blogged about the Iowa “ag gag” law, which made it a criminal offense for persons to use false representations to gain access to farms and ranches for the purpose of exposing animal rights abuses. The District Court in Iowa held that the statute violated the First Amendment.

The Iowa legislature has now amended the statute in an effort to avoid the constitutional issue. The original statute prohibited false representations for the purpose of gaining access to or employment at a farm or ranch; it did not require any actual harm to the farmer/rancher.  The amended statute prohibits deception for such purposes “with the intent to cause physical or economic harm or other injury” to the facility or its owners.  The Animal Legal Defense Fund and other plaintiffs have sued to enjoin enforcement of the new law.

Plaintiffs have stated publicly that they do not challenge the portion of the amended statute that prohibits deception for the purpose of causing physical harm. They do assert that the other two injuries – economic harm or other injury – are blatantly unconstitutional attempts to prevent them from gathering truthful information and hence protected by the First Amendment.

The amended statute is on considerably stronger constitutional foundation than plaintiffs would like to admit. As we have previously explained, the Ninth Circuit upheld Idaho’s prohibition against gaining employment through misrepresentations intended to “cause economic or other injury.” Animal Legal Defense Fund v. Wasden, 878 F.3d 1184, 1202-03 (9th Cir. 2018).

Wasden did limit the phrase to actual, out-of-pocket economic losses. It specifically held that the statute did not encompass reputational or publication damages, so a specific intent to inflict those kinds of harms would not qualify for punishment.  If the Iowa District Court does include that limitation on the statute, it likely passes constitutional muster.

If the courts do uphold the statute in that limited form, it is likely to achieve some, albeit by no means all, of its purpose in restricting undercover activity to expose animal abuse. Most animal rights organizations are primarily interested in putting an end to animal abuse.  Some of the more radical ones, however, would like nothing better than to shut down the production of meat altogether, whether for environmental or animal rights reasons.  That action would clearly entail actual economic harm to the owners.  If those organizations leave postings on social media reflecting such intentions, they may very well be vulnerable to a conviction and the prospect is likely to exercise a chilling effect on undercover activities, even if the real motive is exposing animal abuse.

As predicted, the District Court denied the State’s motion to stay the injunction of the original statute pending appeal. The new statute likely moots that appeal.