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Activists’ case on constitutionality of ‘ag-gag’ law advances

A federal judge has decided not to toss out a lawsuit about the constitutionality of Iowa’s 6-year-old “agricultural production facility fraud” statute, meaning the issue will very likely go to trial next year.

Federal District Court Judge James E. Gritzner, in a 38-page opinion, on Feb. 27 denied the crux of a motion to dismiss the lawsuit against the Hawkeye State. Gritzner, who is on senior status as a judge for the Southern District of Iowa, is allowing the challenge of the law to go forward.

It was a victory for the Animal Legal Defense Fund (ALDF); the American Civil Liberties Union (ACLU); People for the Ethical Treatment of Animals (PETA); and other animal and civil liberties activists. They are challenging state ag-gag laws in the federal courts across the country and have already brought down similar statutes in Idaho and Utah.

Gritzner, who was appointed to the bench by President George W. Bush, did dismiss the activists’ third cause of action, which claimed Iowa’s ag-gag law violates the Equal Protection and Due Process Clauses of the 14th Amendment.

However, he allowed the first and second causes to go forward. The first claims the Iowa law “is (a) content and viewpoint-based restriction of (the Plaintiff’s) speech in violation of the First Amendment,” and the second says the statute “is unconstitutionally overboard in violations of the First Amendment.”

The split decision over what parts of the complaint can and cannot go forward does not mean the 38-page opinion is equally balanced. The animal activists’ attorneys likely are reading the judge’s ruling as an indication they are on track to knock down the Iowa law. Iowa’s assistant attorney generals, however, are likely thinking about an eventual appeal to the 8th Circuit U. S. Court of Appeals.

In ruling that the activists have standing to sue, Gritzner acknowledges case law that requires injury be “distinct and palpable, as opposed to being merely abstract.” But he sided with the plaintiffs because, he said in his ruling, other district courts recently have been doing it.

Another district court judge previously dismissed a PETA lawsuit against North Carolina’s ag-gag law. PETA is appealing that dismissal.

In what he calls “this early stage of the litigation,” Gritzner’s ruling says he is “compelled to follow a delicate and disciplined analysis” of the First Amendment issues.

The Iowa law in question says a person commits the crime of agricultural production facility fraud if that individual obtains access to the facility by pretenses or makes a false statement or representation as part of an application for employment at the facility. The person must know the statement is false with the intent of committing an act not authorized by the owner to be guilty under the statute.

Iowa claims the law regulates only conduct, not speech and conduct does not merit the protection of the First Amendment to the U.S. Constitution. The activists contend the statute restricts content or viewpoint-based speech and is overboard.

Gritzner says the court must determine if the Iowa law is “content-based” or a “content-neutral” restriction. He comes down on the “content-based” on grounds because judgment will be made based on whether a person made a true or false statement.

Iowa’s assistant attorney generals do not think false statements merit First Amendment protection

“Defendants assert that certain cases declining to extend First Amendment protection to defendants in trespass and other similar actions stand for the proposition that lies to gain access to private property are unprotected by the First Amendment,” Gritzner’s ruling says.

“Defendants also argue that property owners incur ‘legally cognizable harm’ and a trespasser obtains ‘material gain’ when a person gains access to their property using false statements.”

But Gritzner concluded Iowa failed to support its point that false statements used to gain access to private property do not merit First Amendment protection. The judge says false statements do merit protection if connected to “furtherance of undercover investigations…”

Attorneys for both sides signed off on a scheduling order and discovery plan that would use the remainder of 2018 for motions and expert witness proceedings. The trial ready date is set for July 14, 2019.

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