Fortunately for the First Amendment to the U.S. Constitution, the GOP state-controlled legislature in Iowa more resembles the gang that can’t shoot straight than constitutional scholars.
In Iowa there are a lot of pigs. The Hawkeye state has more than 5,400 pig farms. There are 23 million hogs give or take, according to the latest count from USDA’s National Agriculture Inspection Service. Iowa’s swine industry keeps roughly 147,000 people employed. In a September 2020 report, the Iowa Pork Producers Association says the state pork industry generated $40.8 billion in sales.
It’s huge. Enormous. Gigantic. And when Big Pork complains to the state legislature … well, lawmakers are willing to be at the industry’s beck and call.
One of the things on Iowa’s Big Pork bucket list is to put an end to media and animal rights activists telling people all the bad things going on in swine processing plants. Those that want to blow the whistle on any number of inhumane if not down right illegal or unethical activities at swine processing plants are very good at gaining access and shooting videos and pictures and sharing them with the media as well as federal and state courts.
That’s where Iowa lawmakers come in. Big Pork has a two-word message: “Fix it.” But as it turns out, Iowa’s legislature can’t pass bills that can withstand civil court challenges — mostly along First Amendment grounds.
Iowa passed its first “ag gag” law back in 2012. The law made it a crime to gain access to agricultural facilities by “false pretense.” Simple and direct. And effective. But in 2019, U.S District Court for the Southern District of Iowa Judge James Gritzner voided the law. In Animal Legal Defense Fund v. Reynolds, Gritzner put the hammer down on Iowa lawmakers:
“If the state is going to restrict protected speech, the restriction must be ‘actually necessary’ to achieve the state’s compelling interest… A prohibition is actually necessary if there is a direct causal link between the restriction imposed and the injury to be prevented. Defendants have produced no evidence that the prohibitions of (the statute) are actually necessary to protect perceived harms to property and biosecurity.”
On appeal, justices partially upheld the 2012 law. In August of 2021, the 8th U.S. Circuit Court of Appeals upheld the district court in ruling that a provision criminalizing obtaining access to agricultural production by “false pretenses” should stand. But writing for the majority, Judge Steven Colloton ruled “given the breadth of the Employment Provision, it proscribes speech that is protected by the First Amendment and does not satisfy strict scrutiny.”
No worries for the Iowa Legislature. It had already rolled out ag-gag 2.0. Penned just two months after Gritzner’s ruling, the shiny new and improved Agricultural Facilities Trespass Act tried to do an end run around First Amendment considerations by focusing on the use of “deception” to gain entry to Iowa livestock factory farms.
“Ag-gag” 2.0 suffered the same fate at the district court as its predecessor. Gritzner issued a preliminary injunction in his scalding ruling against Iowa:
“The deprivation of First Amendment rights is a serious harm, and Plaintiffs have shown that their planned undercover investigations will not proceed due to the risk of prosecution. By contrast, Defendants have not made any persuasive record regarding the interests the statute is said to serve… Defendants have done little to show that §717A.3B responds to ongoing issues of public concern unrelated to the suppression of free speech. By contrast, the public benefits from people and organizations exercising First Amendment rights and educating the public about important issues relating to animal abuse and safety at agricultural production facilities.”
An appeal of “Ag-gag” 2.0 is pending. But hey, if your first attempt don’t succeed, write yet another law. Make that two.
In 2020, Iowa lawmakers wrote the Food Operation Trespass law. The law says 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.”
That law was ruled to be constitutional by an Iowa district court judge in a criminal case in Wright County this past January.
Still not good enough for Iowa lawmakers. With “Ag-gag” 1.0 and 2.0 still not ultimately settled by the courts, lawmakers, who we must say have entirely too much time on their hands, wrote — wait for it — “Ag-gag” 4.0. In 2021, lawmakers made it a crime for any person while trespassing, “knowingly places or uses a camera or electronic surveillance device that transmits or records images or data while the device is on the trespassed property.”
Naturally there was a lawsuit. The Animal Legal Defense Fund, People for the Ethical Treatment of Animals and other plaintiffs argued the law infringes on First Amendment rights for free speech. U.S. District Court for the Southern District of Iowa Central Division Judge Stephanie M. Rose found the argument compelling. In September, Rose denied Iowa’s motion to dismiss and granted the plaintiffs’ summary judgment:
“The United States Constitution does not allow such a singling out of the exercise of a constitutional right. The decision to single out this conduct is most plainly shown by Defendants’ description of the Act as ‘enhancing the penalty for conduct that is already prohibited by law.’ That is the issue with the law — it is enhancing a criminal penalty based on the exercise of speech (or a predicate component of speech). The law does not limit its reach to specific instances of using a camera, such as a peeping tom situation. Rather, the Act only punishes a trespasser exercising a constitutional right. Section 727.8A burdens the exercise of speech and Defendants have not proffered a sufficient justification for such a burden.”
As for trying to get reaction on “ag-gag” rulings from the state? Forget it. Iowa’s attorney general’s office, defenders of “ag-gag” 4.0, and Gov. Kim Reynolds don’t want to talk about it.
So let me.
It’s a disgrace Big Pork would rather count on Iowa lawmakers to cover up their potential lawbreaking than clean up their slaughter houses and act legally and above board.
Given the history of Iowa’s attempt to pass a clean, constitution proof state “ag-gag” law, does anyone want to bet that more appeals and “ag-gag” 5.0 are on the horizon? Didn’t think so.
About Dave Dickey
Dickey spent nearly 30 years at University of Illinois at Urbana-Champaign’s NPR member station WILL-AM 580 where he won a dozen Associated Press awards for his reporting. For 13 years, he directed Illinois Public Media’s agriculture programming. His weekly column for Investigate Midwest covers agriculture and related issues including politics, government, environment and labor. His opinions are his own and do not reflect Investigate Midwest. Email him at dave.dickey@investigatemidwest.org.
