Content Regulation / Censorship
ABC & Others v. Telegraph Media Group Limited
On Appeal Expands Expression
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A US District Court in Iowa struck down an agricultural industry supported statute, Iowa Code § 717A.3A, as unconstitutional for violating the First Amendment. The case was brought by a group of non-profit advocacy and investigative organizations challenging the constitutionality of a so-called “ag-gag” law which criminalized undercover investigations into the practices of agricultural companies. The defendants argued that the statute was necessary to protect private property and the biosecurity of the facilities, as well as to protect the industries from reputational harm. The Court rejected their arguments as un-compelling. It held that the statute unnecessarily infringed on protected content-based communications. The Court concluded that the statute failed to survive judicial scrutiny on the grounds that “[b]y 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.’ ”
In response to a series of investigative reports into agricultural business practices which garnered national attention, Iowa passed Iowa Code § 717A.3A, to address security concerns and potential reputational harms. The code created the criminal offense of “agricultural production facility fraud,” relating to persons who willfully:
While a first conviction would be a serious misdemeanor, and a second conviction an aggravated misdemeanor, the law effectively criminalized undercover investigations of agricultural facilities if a person was found to have conspired to violate the statute, aided or abetted a violation, or harbored, aided, or concealed the person committing the violation, “with the intent to prevent the apprehension of the person.” (p. 4)
The Court noted that the Iowa statute was similar to statutes passed in other states which “prohibit conduct or speech related to agricultural operations,” many of which have been either “invalidated” or limited in scope for violating the First Amendment. (See Animal Legal Def. Fund v. Herbert, 263 F. Supp. 3d 1193, 1196-98 (D. Utah 2017); W. Watersheds Project v. Michael, No. 15-CV-169-SWS, 2018 WL 5318261, at *10 (D. Wyo. Oct. 29, 2018); Animal Legal Def. Fund v. Otter, 118 F. Supp. 3d 1195, 1200-09 (D. Idaho 2014)) (p. 5)
The Plaintiffs included, 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 who claimed that Iowa Code § 717A.3A “impermissibly restricts their First Amendment Rights” to conduct or publicize journalistic investigations into animal cruelty, wellbeing of workers, and safety of the food supply. (p. 5-6) On October 10, 2017, they filed a complaint alleging that “§ 717A.3A is facially unconstitutional as a content-based, viewpoint-based, and overbroad regulation.” (p. 6)
Amicus Briefs were submitted on behalf of the Plaintiffs by the Iowa Freedom of Information Council and the Iowa Center for Public Affairs Journalism. They argued that the American public had a great interest in information relating to their food sources but that lawmakers and the food industry have attempted to circumvent the First Amendment by “suppressing” investigative reporting under the pretense of protecting private property.
Defendants included the Governor of Iowa, the Attorney General of Iowa, and the County Attorney for Montgomery County, who argued that there was no First Amendment right to engage in the conduct prohibited by the statute.
Judge James Gritzner of the US District Court for the Southern District of Iowa delivered the summary judgment.
The Court began by reviewing the scope of the First Amendment. Referencing established case law, the Court affirmed that the “government has no power to restrict expression because of its message, its ideas, its subject matter, or its content,” and any law which restricts speech can only be justified if it is narrowly tailored to address pressing state interests. (See United States v. Alvarez, 567 U.S. 709, 715 (2012); Ashcroft v. ACLU, 535 U.S. 564, 573 (2002); and Animal Legal Def. Fund v. Herbert, 263 F. Supp. 3d 1193, 1196-98 (D. Utah 2017))
The Court dismissed Due Process and Equal Protection claims brought under the Fourteenth Amendment as moot on the grounds that the First Amendment fully addressed the claims.
The Court applied a three-step process for evaluating free speech challenges:
First, the Court found that the statute did implicate protected speech, namely false statements and misrepresentations, which are protected insofar as they do not cause “legally cognizable harm” or benefit the speaker materially. The Court stated that its duty was to assess false statements from a legal, rather than moral perspective based on the Supreme Court ruling in in Alvarez which found 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.” (p. 10)
Next, the Court determined that Iowa Code § 717A.3A is a content-based regulation on the grounds that a violation can only be proved by assessing the content and veracity of the speech in question. Content-based regulations are “presumptively unconstitutional” and can only be justified if they are narrowly tailored to address a “compelling state interest,” and as such must “survive strict scrutiny.” (See Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 2226 (2015)). Having determined that the Code involved content-based regulations, the Court found it unnecessary to assess whether it also implicated view-point based speech.
The Court found the defendants’ argument, that the statute was required to protect private property and biosecurity, to be important but not compelling for a First Amendment challenge. The Court also noted that statements made by the defendants on record revealed a motivating concern over the potential reputational harm from the investigative reports. Ultimately, the Court found the defendants failed to provide sufficient evidence that the restrictions were necessary to protect their stated interests. The required “direct causal link” between the alleged falsehoods and violations of biosecurity could not be proved. The Court established there were “content-neutral” alternative remedies which could be employed to meet the State’s interest in protecting private property and biosecurity. For instance, Iowa’s trespass law could be relied on “without chilling speech.”
The Court further found the statute not only unnecessary but also “under-inclusive” insofar as it did not restrict other forms of expression that could lead to the same injury – as such it questioned whether the statute actually protected the stated interest or simply disfavored “a particular speaker or viewpoint.” For instance, the statute did not prevent individuals from accessing the facilities “without false pretenses” who may still be able to trespass or violate biosecurity measures.
Moreover, the statute can also be seen as “overinclusive” as it effectively criminalizes impugned breaches of duty or loyalty by a purported employee to an employer, which “goes far beyond what is necessary to protect the state’s interests and allows for expansive prosecution.” (p. 18)
The Court concluded that the statute failed to survive judicial scrutiny, even under intermediate scrutiny, finding that “[b]y 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.’ ”
In February 2019, the State appealed the case to the U.S. Court of Appeals for the Eighth Circuit.
In April 2019, Judge James Gritzner awarded more than $181,000 in legal fees to the lawyers for the plaintiffs.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The ruling expands expression by preventing the enforcement of a law which suppressed the investigation and public dissemination of information pertaining to cruel or unsafe practices in the agricultural industry by criminalizing standard journalistic activities.
The Iowa ACLU, which was also party to the case, noted the chilling effect the law had, writing “It has effectively silenced advocates and ensured that animal cruelty, unsafe food safety practices, environmental hazards, and inhumane working conditions go unreported for years.
The judgment affirms previous rulings by Federal courts in Idaho, Utah and Wyoming.
However, in March 2019, while the case is pending appeal before the Eighth Circuit, Iowa Gov. Kim Reynolds signed a new “ag gag” law, the Agricultural Facility Trespass Act ,which “ makes it a crime for journalists and advocacy groups to go undercover at meatpacking plants, livestock facilities and other ag operations to investigate working conditions, animal welfare, food safety and other concerns.” The new law, which opponents refer to as “ag-gag 2.0” is more narrowly tailored than its predecessor is and hence its proponents anticipate it will survive any future constitutional challenges.
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