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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….
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The decision seems to be using very convoluted reasoning to make a very obvious point. A similar challenge could be made to a solicitation to commit murder statute. Such a content is obviously not viewpoint neutral. It undoubtedly disfavors the viewpoint of people who think that homicide is a perfectly reasonable way to solve economic or interpresonal problems, and it definitely imposes a particular moral perspective. It does everything the plaintiffs complain about regarding the Iowa statute.
The obvious reason why both the hypothetical murder solicitation statute and the actual Iowa statute are constitutional is the crime facilitation speech doctrine, or more precisely, the illegal conduct facilitation speech doctrine. A simple application of the doctrine is that there is no First Amendment right to obtain something valuable from another by fraud. Obtaining a job by deception is simply a kind of fraud. And limiting it to frauds that involve the additional element of damaging the employer’s business is just another straightforward application of the illegal-conduct facilitation doctrine.
But instead of a short opinion that states and applies these simple well-established exceptions to the First Amendment, the opinion uses only general principals and then takes a lengthy tour through convoluted hoops to reach the same result. It does an awful lot of work to reach the otherwise obvious idea that such speech isn’t protected.
Did you make up, “Illegal conduct facilitation doctrine,” or is that a thing which exists already, independent of, “crime facilitation doctrine?”
Getting the job is to get access to investigate, not because they desire a value-as-paid-job.
The limitation “with the intent to cause physical or economic harm or other injury” is probably narrower than lawmakers wanted.
But John, do you believe everything you did when you were 20?
I sure don’t — and how do you prove that the person simply didn’t change his/her/its mind about whatever is involved?
I wasn’t pro life until I studied the southerner’s defense of slavery and realized that they were referring to slaves in the same non-human terms that the pro abortion folks refer to fetuses. And I changed…
So you would support a female slave who was impregnated by her ‘master’ after rape to abort her fetus or no?
Any agricultural facility that doesn’t have a backhoe is looking for trouble.
“Nope, never heard of him. He certainly did not work here.”
Where do you think the FIRST place that the cops will look for a body? Yep, soil that’s been excavated by a backhoe — and they can tell…
The New York Times describes today how Iowa is becoming an increasingly desolate, can’t-keep-up backwater on the wrong side of bright flight, pushing Ag-Gag laws for a hayseed populace.
A law against lying to get a job with a business with the intention of sabotaging it hardly seems a “gag” law.
Suppose California prohibited lying to get a job with an abortion clinic for purposes of getting on the inside to blow it up. Would you consider that a “gag” law?
Why doesn’t Iowa have the same right to protect farmers from anti-farm people that California does to protect abortion clinics from anti-abortion people?
You may look down on farmers. But there’s nothing wrong with being a farmer.
Seems like there is not much equivalence between blowing up an abortion clinic, and lying to get a job with intent to report what you find out at work.
I recall intensely different arguments along this line from clingers when the work of disgraced (and discharged) loser and glamorously fabulous dancing queen James O’Keefe and Project Veritas were being discussed.
But who can focus on substance when those videos are being enjoyed?
Carry on, clingers. Yikes!
As someone who is a little familiar with some of the operations; these are not typical ‘farms.’ And not your typical farmers. They are giant corporate animal confinement pens breeding animals for slaughter. And a lot of the issues are not so much the killing of the animals its the fucking stench. It gets hot in Iowa in the summer and pig shit stinks when its 40,000 of them shitting all day every day.
Its quite genius really because the hog confinements in particular have slatted floors to collect as much waste as they can and then sell it back to farmers to spray on their fields as fertilizer.
But make no mistake. These are precision run mega confinements that employ limited people and automate lots of the functions. Just gotta get the pigs fat enough to sell. The same corporations could also own the processing facilities. And basically own the entire chain from piglet to pork chop. And sell everything that can make a dollar. BUT IT FUCKING STINKS which the farmers would say ‘smells like money’ but farmers are having hard time competing with the mega corps. There is a centralization or monopolization thing going on where no matter how many fucking pigs they can fit into a 100,000 sq ft hog confinement the price of bacon never seems to go down. Funny that.
The problem with this law comes from a very real example in the Pro Life movement — former abortion clinic employees who have changed their minds about abortion. They genuinely believed in abortions when they were hired — they weren’t lying, and they aren’t now.
So Bubba applies to Ye Old Butcher Shoppe saying “I need beer money, I’ll do whatever you ask me to” — and then he starts dating Suzie Goodbody from PETA and she changes his mind about what Ye Old Shoppe is doing. He didn’t lie on his application, nor is he lying now…
And since when is an employer able to criminally sanction an employee who doesn’t approve of the job? I know vegetarians who have worked supermarket deli counters, slicing and selling cold cuts. The employer got an honest day’s labor out of them, what more should an employer be able to ask?
Personally, I blame the companies — they got big money, they could afford to do a scintilla of background research on applicants. The casinos do, but they also pay better than Big Ag does. And some of the stuff, like having employees moving chicken feces with their bare hands, really does need to get reported.
I could ethically go to the company and say “I’ll drive your truck” — and then seeing the illegal aliens being forced to move chicken feces with their bare hands and dropping a dime about *that.*
I wouldn’t have started working for them had they told me they treated human beings like that. (And this is a real example from an egg producer in Western Maine.)
So the employers need to have some sort of updating or recertification process? Maybe they could even impose an ongoing duty to advise if any information in the application changes.
In that case the intent element would be missing. Intent is based on the situation at the time.
Otherwise, everybody who subsequently couldn’t pay back a loan would be guilty of fraud, and Bailey v. Alabama (the debt peonage case) wouldn’t have been decided the way it was.
There was a 1970s case involving a person who became a homosexual after immigrating to the United States, or at least convinced a federal judge that that was the situation. In one of the cracks in the general legal regime of the era, the judge concluded he didn’t lie on his visa application at the time, was eligible to enter at the time he entered, hence didn’t meet the criteria for deportation. And he let him stay.
Weird (to me, anyway) that the law is focused on agricultural businesses. So, presumably, anti-choice people are still free to lie, in order to gain employment at Planned Parenthood; and anti-guy people are free to lie, in order to work for the NRA, gun makers, et al.
Why the special carve-out for this narrow section of business?
It’s also interesting to me that the intent requirement allows for really disparate treatment of almost identical people.
Person One: “I want to get a job with Farm X, so that I can expose the inhumane conditions and drive this sleazy farm out of business.” Guilty!!!
Person Two: “I want to get a job, so that I can expose the inhumane conditions. This will shame the farm, it will bow to market pressure, will improve conditions for the animals, and will end up producing better-quality meat products for consumers, and therefore–eventually–higher profits.” Not guilty, correct?
If the above is correct, then (assuming I’m a lawyer for an animal-rights advocacy group) I’d be advising my clients, “Make sure you–before ever applying for work at the farm–create a detailed and clear history of wanting Option Two as your end-goal. Lots of emails and texts, explaining how much you hope that your exposé will result in a net benefit to the farm. As long as your motivation is to help the farm that’s murdering all those animals . . . then you will not meet the elements of this new law. Do you understand what I’m saying?” [wink wink]
You raise an interesting question — can a state criminalize the reporting of conduct which is itself illegal?
I’m no fan of PETA but some of the stuff these animal rights activists report is illegal conduct. So can a state criminalize my getting a job somewhere so that I could report the criminal conduct of the company? (Say they were dumping toxic waste into the river, or selling contaminated food…)
I’m not saying that the whistleblower statutes should extend to the private sector, but then I also don’t think the criminal law should either.
A law like this has to be interpreted with some common sense. An intent to get a business to comply with the law is not an attempt to damage the business.
In Iowa it evidently is regarded as such.
Pretty much all Ag-gag laws are, in effect, to protect violators.
A basic problem with PETA infiltration is that there’s a thin line between infiltrating to expose illegal conduct, and infiltrating to manufacture illegal conduct. There’s a serious concern that people take jobs to create a predicate for enforcement, rather than just discover it.
PETA in particular has something of a history doing that.
.
Better Americans will clean up this mess as the culture war continues to sift . . .
A business owner in New York(?) was subject to a court order prohibiting reporting immigration law violations. He was accused of extorting employees by threatening to report them.
Ordinarily public policy strongly favors allowing reports of illegal conduct to the authorities responsible for enforcing the law.
Since it’s a crime to knowingly employ illegal aliens, the situation would seem a bit different from the state simply prohibiting someone from reporting a violation of federal law to federal authorities.
If California is entitled to have a law focused on abortion clinics, Iowa is entitled to have a law focused on farmers.
“We Weird (to me, anyway) that the law is focused on agricultural businesses. So, presumably, anti-choice people are still free to lie, in order to gain employment at Planned Parenthood; and anti-guy people are free to lie, in order to work for the NRA, gun makers, et”
Not that weird, really. It just illustrates the priorities of the legislature – in this case protecting the Ag industry, in a state with a large Ag industry.
Well, that was my first thought (Occam’s Razor, and all that). Anything in the legislative history that indicates it’s as simple and straightforward as that?
“anti-guy people”
I think we’re supposed to call them feminists.
Agriculture is big business in the Midwest, bigger than abortion and the gun industry combined. Combined with that, there is a perceived problem with secret agents infiltrating the food industry that you don’t see in the gun industry. In farm country they are also trying to ban describing pretend milk with the word “milk”, as in “oat milk”. Oprah got sued in Texas for meat libel. There are also laws I would describe as “trespass with intent to embarrass a food producing business” that are on shaky constitutional ground.
It seems to me that criminalizing lying on a job application about a material matter is just criminalizing fraud, which is unobjectionable, constitutionally speaking.
Yes, but there is that little “beyond reasonable doubt” bit — and what really is a lie?
Remember Meatloaf’s “Bat out of Hell” album and the promise he’d love her until the end of time? I’m a wee bit more of a social conservative than you, and I don’t want to see guys criminally prosecuted for this….
And how do you presume to prove what someone was thinking when he/she/it filled out the application? People change — I worked for Gary Hart….
Please don’t make me trot out the Billy Madison quote again.
Ah, yes, reasonable doubt and state of mind, the two weird tricks that make all criminal prosecutions impossible. If only we could prove what someone was thinking, we’d finally be able to put criminals in jail after more than 200 years of attempts.
“Remember Meatloaf’s “Bat out of Hell” album and the promise he’d love her until the end of time? I’m a wee bit more of a social conservative than you, and I don’t want to see guys criminally prosecuted for this”
That’s pretty stupid.
Is anyone shocked that Dr. Ed feels the need to ask, “what really is a lie?”
Remember what he said about that promise?
“I’ll never break my promise or forget my vow”
So, nothing to prosecute him for.
Ah, yes, but plenty of predicate for an investigation of terrorist tendencies, reckless driving, illegal parking and creating a nuisance: “But God only knows what I can do right now / I’m praying for the end of time”. The FBI should step in before someone’s body ends up torn and twisted at the foot of a burning bike!
Go ahead and attack expressive freedom, Nieporent.
I’m in favor of letting employees speak out about any public-interest-related issues they learn about on the job. Also in favor of letting them ignore job application demands to the contrary.
So you’re not a fan of the culture war casualties’ Ag-Gag/NDA combo platter?
I’m sure that’s an IKYABWAI? because I always point out your hostility to speech, but I didn’t “attack” anything. I described the state of the law.
You keep saying (falsely) I oppose free speech. Here I am, demonstrating support for free speech which you say is against the law.
And how much money will you now spend to adjudicate the meaning of
Material
Certain
Intends
Injury.
Oh,the decaying professon of law!!
“is” General; don’t forget “is”.
Assuming an election in November, the democrats could just go ahead and require national ID cards, with full background checks and DNA in a data base.
That way the Big AG companies, united in the Food Unification Plan under the watchful eye if a diversity hire, could be sure no old managers ever worked again. And no one would need undercover reporting, because The Ministry of Truth would automatically publish what is needed.
It seems to me that a reporter or whistle-blower type defendant for an employer who is engaging in clearly illegal conduct would have a perfectly plausible legal defense. Bringing a business into compliance with the law doesn’t damage it. It improves it.
The issue is as old as Socrates. Socrates (or Plato at any rate) argued that because justice is a virtue, a good and uplifting thing, bringing people to justice (or giving justice to people) improves people, it doesn’t damage them, and hence justice, including punishment, is not damaging.
Why wouldn’t this be a valid defense?
And if the claims of some commentators — that the real goal of the law is to intimidate people from reporting federal crimes because the state doesn’t like federal law and doesn’t want it enforced — are true, then it seems to me a defendant would also have a Supremacy clause defense.
This potential application is not apparent in the law’s face, so it doesnmt justify a facial challenge. But if this is really how Iowa intends to apply the law and it really is applied that way, an as-applied challenge could be made in an appropriate case.