Eighth Circuit Upholds Iowa Law Increasing Trespass Penalties When Trespasser Uses Recording Device

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

Iowa enacted a trespass-surveillance law penalizing anyone who, while trespassing, "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[.]" …

The Act applies only when there has first been a "trespass" as defined in Iowa Code § 716.7(2). When a general trespass does not involve injury to a person or property damage over $300, Iowa punishes the offense as a "simple misdemeanor," with a fine between $105 and $855 and up to thirty days of imprisonment. The Act, however, punishes a first offense of trespass-surveillance as an "aggravated misdemeanor," with a fine between $855 and $8,540 and up to two years of imprisonment. The State argues these steeper penalties are, in part, meant to deter would-be trespassers from placing or using recording devices, in addition to protecting the privacy interests of Iowans on their private property….

Because freedom of speech includes expression through the making and sharing of videos, we assume without deciding that the use of a camera while trespassing implicates the First Amendment as protected activity. We must then review the statute by applying the appropriate level of scrutiny. As the district court correctly assumed, Plaintiffs' facial challenge to the Act should be reviewed under intermediate scrutiny because the Act represents a content-neutral time, place, and manner restriction.

Because we assume the Act regulates a constitutional right, the Act must be narrowly tailored to serve the State's significant governmental interests, and "it must not 'burden substantially more speech than is necessary to further the government's legitimate interests.'"

The State cited its interests as protecting the privacy interests of individuals on their property, preventing the theft of trade secrets and proprietary information, and deterring trespassers from wrongfully alighting onto a property to make a recording…. "[P]roperty rights and privacy are important governmental interest[s]." …

"Although a valid time, place, or manner regulation 'need not be the least restrictive or least intrusive' means of serving the government's interest, it may not restrict 'substantially more speech than is necessary.'" … Given the significance of the State's interests in stymieing surveillance-trespass, the Act does not restrict more speech than necessary to achieve its ends. The State seeks to protect property rights by penalizing that subset of trespassers who—by using a camera while trespassing—cause further injury to privacy and property rights. The State need not heighten the penalties for general trespass when its interest is in preventing trespass-surveillance specifically.

Nor do other Iowa laws cited by the district court [in invalidating the law] criminalize the same conduct the Act does. For instance, Iowa's "peeping tom" law prohibits filming without consent "another person through the window or any other aperture of a dwelling … if the person being viewed, photographed, or filmed has a reasonable expectation of privacy[.]"The peeping tom law is limited in scope: it only protects persons in their homes from being recorded by someone outside the home and filming through a window. Likewise, the cited invasion of privacy law only prohibits a person from filming, without consent, "another person, for the purpose of arousing or gratifying the sexual desire of any person," if the person being filmed "has a reasonable expectation of privacy while in a state of full or partial nudity." That law is limited to instances when a voyeur tries to film a nude person to satisfy sexual desires. As the State points out, these two laws protect privacy and property rights in a limited set of circumstances….

The Act completely bans the use of a camera while trespassing, but even "[a] complete ban can be narrowly tailored … if each activity within the proscription's scope is an appropriately targeted evil." … Without a doubt, trespassing is a legally cognizable injury because it harms the privacy and property interests of property owners and other lawfully-present persons. Trespassers exacerbate that harm when they use a camera while committing their crime. The Act is tailored to target that harm and redress that evil. Because the Act's restrictions on the use of a camera only apply to situations when there has first been an unlawful trespass, the Act does not burden substantially more speech than is necessary to further the State's legitimate interests….

Whatever Plaintiffs' First Amendment interests may be, we cannot "go beyond [the Act's] facial requirements and speculate about 'hypothetical' or 'imaginary' cases." … [B]ecause the Act does not prohibit a substantial amount of protected speech relative to its plainly legitimate sweep, we hold that it is not unconstitutionally overbroad.