Court gags on Utah’s ag-gag law

Animal Legal Defense
Fund v. Herbert, No. 13-cv-00679 (D. Utah Jul. 7, 2017)
The court strikes
down Utah’s ag-gag law, relying on Alvarez,
Reed, and the idea that not all access procured by lying is “trespass”
or “harmful.” H/T James Grimmelmann, who thinks the reasoning doesn’t quite
work, perhaps because of the court’s reluctance to rely on the legislature’s
obvious speech-suppressive intent.
A series of
high-profile investigations into agricultural facilities in the mid- to late
2000s spurred a new round of ag-gag laws. While one might once have thought
that film of workers jabbing sick cows in the eye, grinding up live chicks, and
skinning calves alive might have led to increased protections against animal
abuse, it instead mostly led to increased protections against investigation of
agricultural facilities. (One wonders what Upton Sinclair would have thought:
the animal rights organizations aimed for the heart, and apparently hit the
public in the eye.) Utah’s law was introduced, according to its sponsor,
because of “a trend nationally of some propaganda groups . . . with a stated
objective of undoing animal agriculture in the United States.” Another
representative, a farmer, stated that the bill was targeted at “a group of
people that want to put us out of business,” and noted that farmers “don’t want
some jack wagon coming in taking a picture of them.” The sponsor of the Senate
bill said that the bill was meant to address the “vegetarian people that [are]
trying to kill the animal industry” by “hiding cameras and trying to . . .
modify the films and stuff like that.”
Utah’s law
criminalized “obtain[ing] access to an agricultural operation under false
pretenses,” as well as (1) bugging an agricultural operation; (2) filming an
agricultural operation after applying for a position with the intent to film;
and (3) filming an agricultural operation while trespassing.
In 2013, Amy Meyer
became the first person to be charged under the law—apparently the only person
ever charged under an ag-gag law nationwide. She was arrested while filming
what appeared to be a bulldozer moving a sick cow at a slaughterhouse, though
she was on public property at the time and thus not subject to the law. She was
actually charged, though the State dismissed the case without prejudice (!).
This is an interesting case study not of chilling effects (of which more below)
but of licensing effects—the police, whose acts are likely to be far more
important than those of prosecutors, and harder to constrain, felt empowered to
suppress her recording because they had a general sense that some kinds of
recording were illegal, and prosecutors backed them up.
Meyer, joined by
ALDF and PETA, sued. The state challenged their standing. Allegations of
subjective chill aren’t injury in fact, but “a plaintiff need not expose
himself to actual arrest or prosecution to be entitled to challenge a statute.”
In the Tenth Circuit, standing requires (1) that in the past, the plaintiff
engaged in the kind of speech implicated by the statute; (2) that the plaintiff
has a desire, but no specific plans, to engage in the speech; and (3) that the
plaintiff presently has no intention of engaging in the speech because of a
credible threat the statute will be enforced. 
This test was satisfied by all three plaintiffs.  No concrete plans to violate the law were
required.
The state argued
that lying and recording without permission weren’t protected by the First
Amendment at all.  Starting with lying:
lying is speech, but some speech is outside the First Amendment
categorically.  Alvarez, however, says that “lies are not categorically
unprotectable by the First Amendment,” though lies that cause “legally cognizable
harm” are outside of First Amendment protection.  Do the lies targeted here—“obtain[ing] access
to an agricultural operation under false pretenses”—cause legally cognizable
harm?
The state identified
two kinds of harm from such lies: (1) danger to animals and employees, and (2)
trespass. The first is (no pun intended) bullshit.  There was no evidence of it, and no evidence
that it motivated the law’s enactment.  Plus, even though some lies could endanger
animals or employees, not all would, e.g., “the applicant who says he has
always dreamed of working at a slaughterhouse, that he doesn’t mind commuting,
that the hiring manager has a nice tie.”  These are interesting examples because they’re
all, in some way, unfalsifiable.  There
are falsifiable lies that also wouldn’t inherently pose dangers, though they
might be somewhat more correlated with various risks—e.g., the applicant who
claims to have a college degree but doesn’t; the applicant who fails to report
a conviction twenty years ago; and so on. 
Query what the fate of a more specific law targeted at lying about
qualifications ought to be where the job itself doesn’t actually require a
particular qualification.
On to trespass: the
state argued that access to private property procured through misrepresentation
is trespassing, and trespassing is inherently legally cognizable harm.  But misrepresentation doesn’t always negate
consent, and with consent there is no trespass. 
Courts to consider the issue have concluded that it depends on the type
of harm, if any, the liar causes. “[I]f the person causes harm of the type the
tort of trespass seeks to protect—interference with ownership or possession of
the land—then her consent to enter becomes invalid, and from that point on she
is not merely a liar, but a trespasser as well.”  This is where James Grimmelmann objects, as I
understand it; trespass can also be about interference with the right to
exclude, which is why we teach Jacque v.
Steenberg Homes
, and that is inherent in the tort.  But there is still physical trespass that
harms only dignitary interests—as in Jacque—and
dignitary interests have at best a mixed track record against First Amendment
interests (note that I am doing the usual slip/slide between coverage and
protection here, sorry).  Anyway, without
interference with ownership or possession, the consent given to the liar
remains valid even if procured through misrepresentation. 
“Thus, a competitor
who enters a business to steal secrets while posing as a customer is a
trespasser, as is the man who is invited into a home while posing as a
repairman, but is in fact just a busybody looking to snoop around (because both
have interfered with ownership or possession of the property).” 
Okay, that’s a
little harder to explain, because the secret-stealer may cause economic harm,
but not to the land, and the busybody
may not cause any economic harm (and we may have to default to the concept of
high-risk categories, since someone who will lie to get into your house poses
obvious dangers to you and your property). 
Contrast those people with the court’s examples of liars who don’t cause
trespass-type harm: “the restaurant critic who conceals his identity, the
dinner guest who falsely claims to admire his host, or the job applicant whose
resume falsely represents an interest in volunteering.”  These seem to be, respectively, socially
productive, social, and hard-to-see-how-a-jury-could-judge-harm lies.  It’s not clear to me that the concept of
“possession” helps much here in figuring out the difference between lies that
are generally recognized as causing more harm than they’re worth and lies that
aren’t.  It seems that trespass doctrine
itself may encode the same “lies that cause harm” category as Alvarez, with all the resulting
questions about when the inquiry should be retail or wholesale.  I can’t say that feels wrong to me, but it
does expose the structure of Alvarez’s
consequentialism. 
Back to the court’s
reasoning: “the Act here is immune from First Amendment scrutiny under the
State’s trespass theory only if those who gain access to an agricultural
operation under false pretenses subsequently cause trespass-type harm.”  Because such people don’t necessarily cause harm, and the law
sweeps in trivial, harmless lies—“an applicant’s false statement during a job
interview that he is a born-again Christian, that he is married with kids, that
he is a fan of the local sports team,” or the use of a local address for an
applicant who’s out of town—the law is subject to First Amendment scrutiny.
The state argued
that the court should construe “false pretenses” to exclude harmless white lies
and cover only lies material to a person’s access.  That had vagueness implications, and might
cover the applicant who’s really a fan of the crosstown rival rather than the
local team, but regardless, the lie’s materiality to the owner does not itself
make a liar into a trespasser, as several cases about undercover investigations
have held.  So when is an invited guest a
trespasser? The court offered the example of a landscaper who gets a contract
by misrepresenting his previous experience, then does a great job—has he
committed a trespass?  The court found
the “trespass-type harm” standard to be the most persuasive.  The materiality of the lie might render it
harmful, but not in a legally cognizable way. 
Ultimately, absent a further showing of harm, at least some of the lies
criminalized by the law were protected by the First Amendment.
The state then
argued that obtaining a job under false pretenses causes legally cognizable
harm.  Alvarez says: “Where false claims are made to effect a fraud or
secure moneys or other valuable considerations, say offers of employment, it is
well established that the Government may restrict speech without affronting the
First Amendment.” This might work if the law were limited to obtaining
employment under false pretenses, but instead it covered “access,” which would
include “lying about wanting to take a tour, lying about an interest in acquiring
the facility, or lying about wanting to write an article about the facility for
Modern Farmer.”
The First Amendment
also applied to the recording provisions, even though the state argued that the
act of recording wasn’t speech.  But we know that
speech-suppressive laws can operate at different points in the speech
process.  The government can’t circumvent
the right to disseminate a video by regulating the making of that recording
instead.  The state can regulate the act
of recording, but the regulation must be justified and tailored appropriately.
Finally, the state
argued that the First Amendment wasn’t implicated because the law applied only
to speech on private property, to which the First Amendment didn’t apply. The
state’s argument conflated “a landowner’s ability to exclude from her property
someone who wishes to speak” with “the government’s ability to jail the person
for that speech.” The First Amendment is not itself a license to trespass on
private property, or a defense to a private trespass claim.  (But isn’t that exactly what it is here, run
through a concept of consent?  After all,
the state is involved in the enforcement of the private trespass claim, as it
was in NYT v. Sullivan.  One way to think about it, tentatively: what
we are really talking about is the idea of consent, and how some lies don’t
vitiate consent; it might be a different question if the state explicitly
legislated to make clear that a particular lie vitiated consent, but absent
that there is a common-law background against which relevant harm is
defined.  Framed like that, this
implicates the question of standing/legislative competence to identify harm,
but at least provides a roadmap for how one might alter the definition of harm
by finding something new and cognizable.) 
Generally, a
landowner can remove someone from her land even when that person wishes to
exercise First Amendment rights. But the question here was whether the state
could prosecute a person based on her speech on private property, without even
justifying or tailoring the law.  It
can’t.  The state certainly couldn’t
criminalize any criticism of the government on private property.  (Could it criminalize political discussions
without the consent of the property owner on whose property the discussions
were held?  This hypothetical has some
relevance to various proposals about whether, for example, Delaware ought to change its corporate law so that shareholders should
have to affirmatively vote to allow corporations to give political donations.)
What level of
scrutiny applies?  Under Reed, a law is content-based “if
determining whether someone violated the law requires looking at what was said.”
 Still, it’s not entirely clear what
level of scrutiny is applied to anti-lying laws after Alvarez, in which a plurality applied strict scrutiny and two other
Justices applied “proportionality review,” seemingly a variant of intermediate
scrutiny.  The court wasn’t sure what the
“narrowest” ground in Alvarez was,
because it characterized the disagreement among justices as “one of kind—whether
to apply strict or proportional scrutiny—not of breadth.”  That seems odd to me; ordinarily we’d say
intermediate scrutiny was the narrower ground, but in any event, lower courts
have generally applied strict scrutiny to laws implicating lies post-Alvarez.
Here’s where
everything would be much simpler if we just admitted this was a viewpoint-based
law; there’s a reason they’re called “ag-gag” laws.  But instead, the court reasoned that the law
was content-based because determining whether there’s been a lie requires
scrutinizing what the person said.  The
state argued that an anti-lying provision is content-neutral because it barred
all persons, regardless of the message they intend to disseminate, from lying
to gain access to agricultural operations. 
But that’s not the test under Reed.  As for the recording provisions, the question
was whether criminalizing the recording of a particular location was a
content-based restriction.  It was,
because the law criminalizes the recording “of” the operation, not merely any
recording “at” the operation.  “[A]
person standing on agricultural operation property who films a passing flock of
geese is certainly at an agricultural operation, but nobody watching the film
would contend it was a recording ‘of an agricultural operation.’ … In short, if
a person walks off an agricultural facility with a recording, the only way to
know whether she is criminally liable under the Act is to view the recording.”  That’s content-based.
The court’s reading
of Reed is readily defensible (though
it doesn’t address the internal contradictions of Reed, as it has no reason to do
so).  Essentially, at least outside of
commercial speech, only time/place/manner restrictions are exempt from strict
scrutiny.  One might wonder what is left
for the concept of viewpoint-based laws. 
In a pre-Reed world where
content-based meant “not time, place and manner, but covering broad categories
in some way that doesn’t inherently suggest that a government attempt to distort
debate is afoot,” the concept of viewpoint-based regulation did useful work in
identifying government attempts to distort debate that would get scrutiny that
was strict in theory and fatal in fact. 
Post-Reed, who knows?
Unsurprisingly, the
law didn’t survive strict scrutiny.  The
court didn’t have to wade too far into “complex policy questions” because of
the breadth of the law.  The government
identified four allegedly compelling interests: (1) the law protects animals
from diseases brought into the facility by workers; (2) it protects animals
from injury resulting from unqualified or inattentive workers; (3) it protects
workers from exposure to zoonotic diseases; and (4) it protects workers from
injury resulting from unqualified or inattentive workers. The state explicitly
disclaimed reliance on privacy or property interests.  As the court noted, there’s no mention of
worker or animal safety in the legislative history, which was instead “rife with
discussion of the need to address harm caused by ‘national propaganda groups,’
and by ‘the vegetarian people’ who are ‘trying to kill the animal industry.”
Even assuming that
animal and worker safety were actually the reasons for the law, there was no
evidence that the law advanced those interests. 
The targeted harm was entirely speculative, and that can’t establish a
compelling state interest. 
At most, there was “some
evidence in the record of Plaintiffs’ undercover operatives perhaps prolonging
suffering of animals by not reporting abuse in a timely manner.” The state
didn’t claim that the law furthered the interest of quickly addressing animal
abuse by agricultural operations, but even had it done so, the law wasn’t
“remotely” tailored to that goal. 
Several states require employees who record abuse to turn over the
recording to authorities within a certain time period.  While not opining on the constitutionality of
such a provision, that would be both more narrowly tailored to and more
effective at addressing delays in reporting animal abuse.
Even if the state
had shown a compelling interest in animal and employee safety, it hadn’t shown
narrow tailoring.  Narrow tailoring
requires that a law be “actually necessary” to achieve the state’s interests,
and may not be over or underinclusive.  The record didn’t show necessity, and was both
hugely overinclusive, criminalizing “the most diligent well-trained undercover
employees, and underinclusive because “it does nothing to address the exact
same allegedly harmful conduct when undertaken by anyone other than an
undercover investigator.”  What the law was perfectly tailored to do was
preventing undercover investigators from exposing agricultural facility abuses.
ß We are
apparently having a general debate over whether, or in what circumstances, courts
can look at what the government officials responsible for a policy were
actually trying to do, based both on what they said and on what they wrote into
the policy.  If you think that the
analysis above was too much work for an obvious conclusion, or that it may have
unintended consequences for much less pernicious laws, as I do, then it may be
useful to rely more heavily on the objectively manifested indicia of intent:
who was targeted?  There’s often no
separate need to ask “why.”

Anyway, as the state
didn’t contend that preventing such exposure was a compelling state interest,
that was the end of the analysis, and of the law.

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