Nathan A Adams IV is a Partner in Holland & Knight's Tallahassee office
In Animal Legal Defense Fund v. Wasden, 878 F. 3d 1184 (9th Cir. 2018), the court ruled that an Idaho statute criminalizing entry into an agricultural facility by misrepresentation and prohibiting a person from entering the facility and, without express consent from its owner, making audio or video recordings of the conduct of the facility's operations violates the First Amendment. The laws were a reaction to a secretly filmed exposé of the unflattering operation of an Idaho dairy farm revealing animal cruelty. The court determined that the limitation on false statements to gain access to property "seeks to control and suppress all false statements ... in almost limitless times and settings" and "without regard to whether the lie was made for the purpose of material gain." The court disagreed with the state's argument that entry to the property was sufficient "material gain." Furthermore, the state already prohibits trespass without regard to speech. The court was troubled by the sheer breadth of the limitation, potential for selective enforcement and evidence that it was motivated to protect the agricultural industry from critical speech. The court agreed to sever the word "misrepresentation" from the statute at the invitation of the state to save it. The court treated the limitation on recording as an impermissible content-based regulation of speech prohibiting public discussion of an entire topic. The court ruled that even if the state had a compelling interest in support of the law, the statute was not narrowly tailored, but under-inclusive in that it does not reach photographs and over-inclusive in that the state could have limited, instead of prohibited, the filming of agricultural operations. But the court ruled that an Idaho statute criminalizing obtaining records of the facility by misrepresentation and obtaining employment with the facility by misrepresentation with the intent to cause economic or other injury to agricultural operations, property or personnel does not violate the First Amendment or Equal Protection Clause. Unlike false statements to gain access to property, false statements to gain records "inflict[s] a property harm upon the owner, and may also bestow a material gain on the acquirer." The court determined that the state had a legitimate interest in preventing harm relating to an agricultural protection facility's most sensitive information. Likewise, the court ruled that when false claims effect a fraud or secure valuable consideration such as an offer of employment, "it is well established that the Government may restrict speech without affronting the First Amendment."
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