The state of Iowa has filed a notice of appeal and a motion to stay in the U.S. district court decision over Iowa’s Ag-Fraud law, also commonly called an ag-gag law by animal activists because of limitations on undercover investigators under false pretenses. Their request would allow their Ag-Fraud statute to remain in place until the Eighth Circuit of Appeals rules on the pending appeal.

In 2012, on the heels of several industrial farm investigations that brought critical national attention to Iowa’s agriculture industry, Iowa approved a bill to enhance protection for livestock farms. Iowa law already prohibited disrupting, destroying or damaging property at an animal facility or crop operation. The 2012 law made it illegal to obtain access to an agricultural production facility by false pretenses or make a false statement or representation as part of an application or agreement to be employed at an agricultural production facility if the person knows the statement to be false and makes the statement with an intent to commit an act not authorized by the owner of the agricultural production facility, knowing that the act is not authorized.

The original lawsuit was brought by the American Civil Liberties Union (ACLU) of Iowa, along with attorneys from the Animal Legal Defense Fund, the Law Offices of Matthew Strugar, Public Justice and the Center for Food Safety.

Related:Court strikes down Iowa 'ag gag' law

On Feb. 14, 2019, the court declared Iowa’s Ag-Fraud statute unconstitutional under the First Amendment and placed a permanent injunction order on the statute going forward. Iowa Gov. Kim Reynolds, Iowa attorney general Tom Miller and Montgomery County attorney Drew B. Swanson gave notice Feb. 20 to the U.S. Court of Appeals for Eighth Circuit their intent to challenge the district court’s rulings.

Their motion argues that there is no First Amendment right to use false pretenses to gain access to an agricultural production facility or employment at said facility with the intent to knowingly commit an unauthorized act because: (1) unconsented entry to private property constitutes a trespass in Iowa — a legally cognizable harm from which the law infers some damage, and (2) obtaining permission to enter private property or employment at a facility on said property provides a material gain by conferring the ability to do lawfully that which the law otherwise forbids and punishes as trespass, and it can provide income to the speaker.

“Although the court disagreed with the defendants’ arguments, there is precedent that supports those arguments and could lead to reversal of the court’s decisions,” the motion stated. “The Ninth Circuit has upheld a portion of Idaho’s Ag-Fraud statute, which is arguably similar, although slightly narrower, than Iowa’s.”

The Animal Legal Defense Fund vs. Wasden case invalidated Idaho’s prohibition on obtaining access by misrepresentation under the First Amendment by a 2-1 decision but unanimously upheld Idaho’s prohibition on obtaining employment by misrepresentations with an “intent to cause economic or other injury” to the employer. “Iowa’s prohibition on obtaining employment under false pretenses is not much broader than Idaho’s prohibition on the same conduct, but with an intent to ‘commit an unauthorized act’ rather than to cause ‘other harm.’ Most employers likely prohibit unauthorized acts because they feel said acts may result in some ‘harm,’ economic or otherwise, to the employer,” the court brief stated.

“Given agriculture’s significance in Iowa — as demonstrated by plaintiffs’ statements in their complaint on the size and importance of agriculture in Iowa — the inability of the state to promote biosecurity through the enforcement of Iowa’s Ag-Fraud statute may significantly impact Iowans,” the Iowa governor and attorney general challenged in the court document.

In the years leading up to the passage of the ag-gag law in 2012, there were at least 10 undercover investigations in Iowa. Since the law’s passage, there have been zero, the court document stated.

Meanwhile, since the court’s Motion for Summary Judgment Order, advertisements for undercover investigators at animal production facilities in Iowa have now been posted, despite Iowa’s existing laws prohibiting trespass, the court document noted.

“Based upon plaintiffs’ own admissions, Iowa’s existing trespass laws will not deter undercover investigators from continuing to obtain access or employment under false pretenses in the absence of the Ag-Fraud statute,” the court document stated.