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Back to the drawing board: Peeping Tom law help torpedo anti Trespass and record law. Okay, its more than that.

For the third time, the Federal courts have found Iowa farm trespass law to be unconstitutional. Iowa Code § 727.8A made trespassers who and “knowingly places or uses a camera or electronic surveillance device that transmits or records images or data while the device is on the trespassed property” an aggravated misdemeanor. That’s up to 2 years in prison. Simple trespass is more like a fine.

The objecting party was the Animal Legal Defense Fund. They admitted in their court filing that they haven’t recorded yet, but this would prevent them from trespassing and recording in the future. Weird way to say we plan on breaking the law later, but we don’t want to be in more trouble that we would have been under the old law. The federal court said that was enough to give them a “chip and chair” to proceed. (For the law students in the room, standing was the issue).

It’s private property so no first amendment applies was the defense. However, because the state of Iowa waded in and made it a criminal issue, the court said the first amendment applies. So that issue did not save the day for the defense.

Also, it’s a not a free speech issue said the producer groups because the recordings only become protected speech once they are edited or distributed. The federal court found the recording was also part of free speech (in line with some earlier holdings) so this defense fell flat.

With those barriers broke, the last line of inquiry is, can the government do this anyway? The parties did agree that “intermediate scrutiny” is the standard. That means that government wins if it shows that it thought about and couldn’t use less restrictive ways to achieve its specific governmental interest. The court found that the other Iowa laws on peeping toms and invasion of privacy already criminalize recordings and this law was too broad to achieve the government’s desire.

This is not the first rodeo on this topic. The State started in 2012 with penalties for lying about why somebody was on a farm as an employee (deceptive practices to gain access Iowa Code 717.3A).

Since 2012, the Iowa Legislature has enacted several agricultural fraud and trespass laws. The laws, sometimes referred to as “ag-gag” laws, make it a crime to use fraud or deception to gain access to or employment at an agricultural facility. The Ag gag law was partially dismantled by the federal court.

So, Iowa tried again, and criminalized those who trespass on ag facilities intending to do harm or lying to gain access via employment for non-employment reasons. The federal district court said no, again. That issue is on appeal.

Then Iowa tried a new trespass take, calling it “food operation trespass”. That has survived the first test in Federal district court and is still standing. In 2021, they made it criminal to interfere with livestock transport, unauthorized sampling, and another camera law.

Iowa is not in a vacuum doing all this alone. North Carolina, Idaho, Wyoming, Utah, Arkansas and Kansas have all promoted similar laws to provide producers protections. What is a livestock producer to do? First, make sure your operation and your employees are following proper husbandry and animal practices that promote animal wellbeing. Employees should be encouraged and rewarded for reporting variations from the standard. Unless your operation enjoys unannounced visitors, maintain a locks, video surveillance, signs restricting access, and monitor operations sights. Part of this fight is people getting access to facilities to either document problems or create them. You can control the first one, the second one is only controllable to the extent of who you invite into your operation.

Thursday, December 08, 2022
  • Patrick B. Dillon
  • Jill Dillon
Dillon Law PC
Patrick B. Dillon enjoys finding solutions to legal issues and catching problems for clients. Pat practices in the Sumner office regularly represents clients in district, associate district and magistrate courts for agricultural, real estate, criminal and collection issues. He drafts wills and trusts, creates estate plans and helps clients through the probate process.
Dillon Law PC
Jill is a University of Northern Iowa undergraduate (Political Science Cum Laude) and a Drake University Law School graduate. Jill is a firm owner but not currently accepting private pay clients. Jill still has ties to her family farm operation which includes a dairy herd.

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