Round 2: ACLU of Iowa says state's new ag-gag law violates free speech protections

Iowa's second attempt to make it a crime for animal welfare activists, journalists and others to go undercover at meatpacking plants and livestock facilities will face a legal challenge.

The ACLU of Iowa filed a lawsuit Monday challenging the state's new ag-gag law, saying it's unconstitutional, chills free speech and criminalizes a free press.

"The Ag Gag 2.0 law aims to silence critics of worker rights abuses, animal cruelty, unsafe food safety practices, and environmental hazards in agricultural facilities," said Rita Bettis Austen, legal director of the ACLU of Iowa.

Iowa lawmakers and ag groups say the law is necessary to protect producers from groups that would use false pretense to harm farm operations.

The new law is similar to legislation passed in 2012, which a federal judge ruled in January was unconstitutional. The state is appealing that decision. 

Both legal challenges will move through the courts separately, Bettis Austen said.

"Legislators rushed to pass Ag Gag 2.0 shortly after the federal injunction of Ag Gag 1.0 came down. Enough is enough. Free speech means the government is not allowed to put the PR interests of one industry above the constitutional rights of its critics,” Bettis Austen said.

Iowa lawmakers say the new law has been more narrowly crafted to avoid legal challenges that befell the existing law.

The new “agricultural production facility trespass” law makes it illegal for someone to use deception to gain access to a private facility with the intent to cause physical or economic harm or "other injury" to a facility’s operations, property or persons.

The law makes it a serious misdemeanor for a first offense and an aggravated misdemeanor for additional offenses, punishable by prison time and fees. The law also would allow a conspiracy charge.

Rep. Jarad Klein, R-Keota, said he wanted to make sure that "farmers are protected from people who lie to get a job, whose intent is to cause harm."

The ACLU said deception is broadly defined to include both lies and omissions, and there is no definition or limitation on what “other injury” includes.

"The First Amendment protects exposés, boycotts and protests of agricultural facilities, even though those activities may injure a business’s profits and reputation," the group said.

The ACLU, who filed the lawsuit along with Iowa Citizens for Community Improvement, Bailing Out Benji and other groups, said the law singles out "the agricultural industry for protection against political speech that may be harmful to its profits."

"In practice, the law ensures that only one side of the debate about industrial agricultural facilities can be raised," the groups said in the lawsuit.

Adam Mason, Iowa CCI's state policy director, said the law has prevented the group from helping workers within livestock and meat processing facilities.

"They're unable to document, expose and correct detrimental practices at these factory farms," Mason said. "The intent of this law is clear. It is to silence those who are exposed to unsafe working conditions, pollution and other potential violations."

Lawmakers said the bill is needed to help protect pig, cattle and other livestock operations from biosecurity threats.

The bill had widespread agricultural support at the Statehouse, ranging from the Iowa Corn Growers Association and Iowa Farm Bureau Federation to the Iowa Honey Producers Association.

“Agriculture is a critical part of Iowa’s economy,” Mike Naig, Iowa's agriculture secretary, said Monday. The law "provides important protections that allow producers to raise their livestock without the fear of special interest groups with malicious intentions harming their animals or businesses.”

Gov. Kim Reynolds said her office is working with the attorney general's office to "ensure this legislation that supports farmers is upheld."

“I am committed to protecting Iowa farmers and ensuring the safety and security of their livestock,” Reynolds said Monday.

Lawmakers said the new law narrowly focused on false speech that is intended to cause harm. It's similar to part of an Idaho ag-gag law that survived a constitutional challenge.

The U.S. Court of Appeals for the Ninth Circuit said two provisions of the Idaho law — using misrepresentation to obtain employment with the goal of causing economic or other injury and to obtain facility records — should be allowed to stand.

It struck down part of Idaho's law that made using misrepresentation to enter a facility a crime, saying it was "staggeringly overbroad" and violated free speech protections. 

Bettis Austen said the two laws aren't comparable.

"What we're talking about are ... truthful statements about what's going on with these businesses and facilities that may lead to reputational harm because consumers may not like what's going on inside of them," she said.

Donnelle Eller covers agriculture, the environment and energy for the Register. She can be reached by email at deller@registermedia.com or by phone at 515-284-8457.