Eighth Circuit Upholds Ban on Material Lies on Certain Employment Applications, When Speaker Intends to Cause Injury

From today's opinion in Animal Legal Defense Fund v. Reynolds, by Judge Colloton, joined by Judges Grasz and Kobes:

In Animal Legal Defense Fund v. Reynolds (8th Cir. 2021) ("ALDF I"), this court considered an Iowa law that prohibited (1) accessing an agricultural production facility by false pretenses and (2) making a false statement or misrepresentation as part of an application for employment at such a facility. We concluded that the prohibition on accessing a facility by false pretenses did not violate the free speech clause of the First Amendment. But we ruled that the prohibition on making false statements in an employment application was insufficiently tailored and unconstitutional, because it encompassed statements that were not material to an employment decision.

A new Iowa law solves the materiality problem in the employment provision by forbidding the use of deception "on a matter that would reasonably result in a denial of an opportunity to be employed." The statute also narrows the scope of both prohibitions by adding an intent element: the law forbids the use of deceptive speech only when the person gains access or employment "with the intent to cause physical or economic harm or other injury" to the agricultural production facility. After several organizations challenged the new law, the district court concluded that the intent requirement renders the law "viewpoint-based" and unconstitutional under the First Amendment. We respectfully disagree, and therefore reverse….

The challenged statute includes two provisions—an "Access Provision" and an "Employment Provision." Both regulate false or deceptive speech. This type of speech is not per se unprotected, but the State may proscribe "intentionally false speech undertaken to accomplish a legally cognizable harm." ALDF I.

The Access Provision and the Employment Provision do just that. The Access Provision proscribes false speech used to commit a trespass. The harm flowing from trespass is legally cognizable. The Employment Provision proscribes gaining employment through false speech on matters that are material to hiring. As the plurality in Alvarez explained, where false claims are made to secure offers of employment, "it is well established that the Government may restrict speech without affronting the First Amendment."

The added wrinkle, however, is that the new Iowa statute adds an intent requirement that narrows the statute so that it proscribes fewer false utterances. A person is guilty of agricultural production facility trespass only if he gains access or employment "with the intent to cause physical or economic harm or other injury to the agricultural production facility's operations, agricultural animals, crop, owner, personnel, equipment, building, premises, business interest, or customer." The disputed issue is whether this intent requirement grafts an impermissible viewpoint-based restriction onto regulations that otherwise conform to the First Amendment.

Certain categories of speech may be proscribed without violating the First Amendment. Even so, a State may not proscribe speech within one of those categories based on its content or viewpoint. In R.A.V. v. City of St. Paul (1992), the Court held that an ordinance was content-based and subject to strict scrutiny when it forbade symbolic expression that "one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender." Although the ordinance regulated "fighting words," which may be proscribed, the law singled out a particular category of fighting words for punishment—those that "communicate messages of racial, gender, or religious intolerance." The Court held that the ordinance was content-based and unconstitutional.

The rationale of R.A.V., however, does not apply to regulation of conduct. States may single out, for example "bias-inspired conduct because this conduct is thought to inflict greater individual and societal harm." Wisconsin v. Mitchell (1993). In Mitchell, the Court upheld a sentencing enhancement for a defendant who intentionally selected a victim based on the victim's race, because the enhancement was "aimed at conduct unprotected by the First Amendment." … In United States v. Dinwiddie (8th Cir. 1996), we relied on Mitchell to conclude that a federal statute was not content-based or viewpoint-based when it prohibited threats of force against another "to intimidate such person or any other person or any class of persons from, obtaining or providing reproductive health services." The statute's motive requirement did not "transform" a regulation of true threats "into a content-based statute." The motive requirement applied to all persons who obstructed access—whether they might be pro-life advocates or striking employees—"regardless of the message expressed" by the obstructors. The motive requirement thus performed "the perfectly constitutional task of filtering out conduct" that the legislature did not believe should be criminalized, and permissibly focused the statute on acts that were "thought to inflict greater individual or societal harm."

The Iowa statute is likewise consistent with the First Amendment. Each provision permissibly forbids false statements that result in a legally cognizable harm. The law's reference to the content of speech (false statements) is constitutional because "the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable." As in Dinwiddie, the supplemental intent requirement does not distinguish among speakers based on their viewpoints. If a person uses deception to gain employment with intent to harm a facility, the offender would be liable for deceptively praising the facility ("I love the work you do, and I want to support it!") or deceptively criticizing the facility ("This facility is poorly managed, and I will help increase profits."). The statute does not prefer laudatory lies over critical falsehoods.

The organizations argue that Dinwiddie is distinguishable because the motive requirement in the federal statute did not distinguish between different "types" of speakers. The statute, however, did distinguish between speakers who believed that a clinic should be accessible and those who did not. That distinction did not make the statute content-based or viewpoint-based: a statute is content-based if it regulates "speech based on its communicative content." As with the statute at issue in Dinwiddie, the Iowa law regulates proscribable speech, but it does not impose further restrictions based on the speech's communicative content.

Our conclusion was foreshadowed by the Ninth Circuit in Animal Legal Defense Fund v. Wasden (9th Cir. 2018). The court there held that a statute forbidding entry to an agricultural production facility by misrepresentation was not narrowly tailored. But in reaching that conclusion, the court suggested that the addition of an intent element could cure the constitutional infirmity: "We see no reason … why the state could not narrow the subsection by requiring specific intent or by limiting criminal liability to statements that cause a particular harm." The Iowa statute follows that guidance.

In urging a contrary conclusion, the organizations rely on two divided panel decisions from other circuits: Animal Legal Defense Fund v. Kelly (10th Cir. 2021), and Brown v. Kemp (7th Cir. 2023). Kelly held unconstitutional a statute that prohibited the use of deception to acquire control over an animal facility with intent to damage the business of the facility. The court concluded that the intent requirement covered "an intent to engage in protected speech advancing a specific viewpoint," and that the statute "criminalize[d] the inchoate desire to express a view where [the State] cannot criminalize the expression." Brown held that a statute forbidding the audiovisual recording of hunters on public lands, with intent to impede or obstruct lawful hunting, was an unconstitutional restriction on expressive conduct. The court reasoned that the statute was viewpoint-based, because the intent provision required a court to consider a speaker's viewpoint in determining whether his expressive activity violates the statute.

We are not persuaded by these decisions that the Iowa statute is unconstitutional. The intent element determines whether particular conduct violates the statute, but it does not mean that a violation turns on the viewpoint of an offender's deceptive speech. Rather, the intent requirement permissibly reflects "the general view that criminal punishment should be reserved for those who intend the harm they commit." Kelly (Hartz, J., dissenting). The statute filters out trespassers who are relatively innocuous, and focuses the criminal law on conduct that inflicts greater harm on victims and society. In our view, the Iowa statute is not a viewpoint-based restriction on speech, but rather a permissible restriction on intentionally false speech undertaken to accomplish a legally cognizable harm….