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Wyoming can’t block free speech at private property lines

Scott Skavdahl, the federal judge in Casper, WY, has to decide how to balance free speech and private property rights. That’s a task the U.S. District Court judge did not have to take up last year when he tossed out challenges to two Wyoming laws prohibiting trespassing on private land to collect data.

“The ends, no matter how critical or important to public concern, do not justify the means, violating private property rights,” Skavdahl wrote.

The Western Watersheds Project, the Natural Resources Defense Council, and the National Press Photographers filed an appeal to Skavdahl’s ruling with the 10th Circuit Court of Appeals in Denver.

Much of Wyoming remains in a checkerboard of public and private ownership with open range. Almost half of the state is federal land, including such popular tourist designations as the Grand Teton and Yellowstone Parks and Devil’s Tower National Monument.

And last week, a three-judge panel met the appellants half way by reversing the part of the District Court’s decisions that the two statutes are not entitled to First Amendment protection. The appellate judges, however, left it to Skavdahl to work out the details.

“Because we have determined that the statutes at issue regulate protected speech, plaintiffs ask us to go further,” they wrote. “They seek a declaration about the level of scrutiny to be applied and whether the statutes survive the appropriate review.”

In the appellate ruling, written by Judge Carlos F. Lucero and joined by Judges Monroe G. McKay and Harris Hartz, the panel agreed to “allow the district court to consider those issues in the first instance.” They said as a “general rule” the appellate court does “not consider an issue not passed upon below.”

Like Idaho, Utah, and several other states, Wyoming in recent years has imposed new private property protections. Most of the others, however, deal with animal agriculture facilities. Wyoming’s statutes ban data collection on any private property without the owner’s permission.

State government expert Doug Farquhar, with the Denver-based National Conference of State Legislatures, says while there are similarities to “Ag-Gag” statutes, the Wyoming laws are “broad in scope” with the intent of limiting the collection and use of data that might interfere with the exploitation of natural resources.

But First Amendment protection is provided to this activity. “We conclude that plaintiffs’ collection of resource data constitute the protected creation of speech,” Lucero wrote.

The three-judge panel said banning note-taking or photography at a public event “would raise serious First Amendment concerns, a law of that sort would obviously affect the right to publish the resulting photograph or disseminate a report derived from the notes.”

Wyoming’s challenged statutes impose civil and criminal liability on any person who “crosses private land to access adjacent or proximate land where he collects resource data.”

The laws took effect in 2015 and we’re amended in 2016 to more narrowly apply to private property, not merely open space. The Wyoming Legislature made the 2016 changes in reaction to the Skavdahl’s early criticisms after filings of the original challenges in his court.

The changes mean Wyoming’s law is only about trespassing to collect data on private land. The three-judge panel agreed there is no right to trespass on private property, yet it called out the “broad definitions” in the Wyoming law.

It said the term “collects resource data” could include numerous activities “such as writing notes on habitat conditions, photographing wildlife, or taking water samples, so long as an individual also records the location from which the data was collected.”

“We conclude the statutes regulate protected speech under the First Amendment and they are not shielded from constitutional scrutiny merely because they touch upon access to private property, ” Lucero wrote.

The appellate ruling finds the Wyoming statutes target the “creation” of speech by imposing heightened penalties on those who collect resource data.

A conviction of criminal trespass in Wyoming is subject to not more than six months imprisonment and a $750 fine. A conviction under the new statute includes up to one year in jail and $1,000 fines for first offenders.

On the civil side, the private property owner could sue for damages and litigation costs.

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