The Volokh Conspiracy
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Eighth Circuit Upholds Ban on Trespassing for Surveillance Purposes
From PETA, Inc. v. Reynolds, decided Thursday by the Eighth Circuit (Judge Steven Grasz, joined by Judges James Loken and Raymond Gruender):
[Iowa's] general trespass statute defines "trespass" to include "[e]ntering or remaining upon or in property … after being notified or requested to abstain from entering or to remove or vacate therefrom by the owner …." "A person has been notified or requested to abstain from entering or remaining upon or in the property … if … [t]he person has been notified to abstain from entering or remaining upon or in property personally, either orally or in writing …." When an ordinary trespass does not result in bodily injury or property damage exceeding $300, the offense is a "simple misdemeanor" and is punished by a fine between $105 and $855 and up to 30 days of imprisonment.
In 2021, Iowa decided its general trespass statute was not deterring trespassers from unlawfully entering private property to record their trespasses. So it enacted § 727.8A to create a new "trespass-surveillance" offense, which it treated more harshly than ordinary trespass. For instance, under § 727.8A,
[a] person committing a trespass as defined in section 716.7 who knowingly places or uses a camera or electronic device that transmits or records images or data while the device is on the trespassed property commits an aggravated misdemeanor for a first offense and a class "D" felony for a second or subsequent offense.
Iowa punishes aggravated misdemeanors with a fine between $855 and $8,540 and up to two years of imprisonment, and class D felonies with a fine between $1,025 and $10,245 and up to five years of imprisonment.
Two … animal-welfare groups, including ICCI [Iowa Citizens for Community Improvement], developed as-applied challenges on remand, contending the statute's prohibition against using cameras while trespassing chills their members' speech when applied to prevent them from recording on private property that is otherwise open to the public after being asked to leave but not to stop recording. Relevant here, ICCI alleges its members intentionally record themselves committing ordinary trespasses, "particularly … at political and corporate sites," to draw attention to their activities. ICCI alleges its members are willing to suffer the consequences for ordinary trespass but the heightened penalties for trespass-surveillance have chilled their speech….
Whether the First Amendment protects ICCI's members' speech in this context is an open question. We know "freedom of speech includes expression through the making and sharing of videos" in some instances. But the Supreme Court "has never held that a trespasser … may exercise general rights of free speech on property privately owned and used nondiscriminatorily for private purposes …." Lloyd Corp. v. Tanner (1972); see also Hudgens v. NLRB (1976) (holding picketers "did not have a First Amendment right to enter [a privately owned] shopping center for the purpose of advertising their strike"). We need not resolve this question because even assuming recording while trespassing implicates the First Amendment, ICCI's as-applied challenge fails.
[Section] 727.8A is "reviewed under intermediate scrutiny because [it is] a content-neutral time, place, and manner restriction." "To survive intermediate scrutiny, 'a regulation need not be the least speech-restrictive means of advancing the Government's interests.'" "Rather, the standard is satisfied so long as the regulation promotes a substantial government interest that would be achieved less effectively absent the regulation and does not burden substantially more speech than is necessary to further that interest." …
Iowa has an important government interest in protecting its citizens' property and privacy rights…. "[D]iminution of privacy and a violation of the right to exclude [are] legally cognizable harms." … Section 727.8A promotes this interest. For example, in arguing that the statute chills its speech, ICCI admitted its members no longer record while trespassing because they are unwilling to risk the heightened penalties for trespass surveillance, and in arguing its injury is redressable, ICCI stated its members will resume their misconduct if we enjoin § 727.8A. Consequently, we conclude § 727.8A "promotes a substantial government interest that would be achieved less effectively absent the regulation" and turn to tailoring….
Iowa's interest in preventing trespass-surveillance is particularly strong because recordings can be disseminated widely and indefinitely, exacerbating the harm ordinary trespassers cause to property and privacy rights, and § 727.8A is narrowly "tailored to target th[is] harm and redress th[is] evil," as its "restrictions on the use of a camera only apply … when there has first been an unlawful trespass …. " …
ICCI alleges its "members travel to spaces generally open to the public," "disruptively protest," "are inevitably asked to leave," and "intentionally record themselves trespassing" "during these encounters." ICCI's members then send "the video recordings to media outlets to increase their advocacy efforts [and] draw attention to their message." ICCI posts this content on its website and social media "to communicate the message of the protests to ICCI's members and the public, and thereby encourage people to join the work." To give a few examples, ICCI alleges its "members have been arrested for trespassing in a number of settings: blocking a construction site, protesting in a bank lobby, and protesting in the offices of elected officials." Based on ICCI's own allegations, its members plainly want to engage in the exact misconduct § 727.8A is narrowly tailored to proscribe. Consequently, ICCI's as-applied challenge fails….
ICCI contends applying the statute does not further Iowa's interest in protecting property and privacy rights when a property owner objects to its members' presence but not to their recording. This is nonsensical. When a property owner uses his "power to exclude" by ejecting a trespasser—"one of the most treasured strands in [his] bundle of property rights"—he necessarily exercises his lesser right to stop the trespasser from unlawfully recording on his property….
ICCI [also] suggests Iowa's interests in protecting property and privacy rights are not implicated when the locations at issue are otherwise open to the public. But property owners forfeit neither their right to exclude nor to control their property by opening it to the public for a certain purpose….
ICCI posits the officials failed to produce any evidence demonstrating Iowa needed to proscribe all the speech covered by the statute to achieve its interests. This argument lacks merit because § 727.8A is subject to intermediate rather than strict scrutiny, as discussed above…. "[A] regulation need not be the least speech-restrictive means of advancing the Government's interests" to survive intermediate scrutiny …. {As ICCI points out, under the Fourth Circuit's PETA decision, it is "a nonnegotiable requirement" of intermediate scrutiny that there be "'actual evidence' in the legislative record that lesser restrictions will not do." But we are not bound to follow PETA and will not do so because it is inconsistent with the intermediate scrutiny standard outlined in TikTok and Turner Broadcasting Systems.}
In sum, … [ICCI] members' recordings implicate Iowa's important state interest in protecting owner's property and privacy rights, these interests would be served less effectively without the statute, and the statute does not proscribe substantially more speech than necessary to achieve Iowa's legitimate ends.
Breanne Alyssa Stoltze argued on behalf of the state; Jacob John Larson was with her on the briefs.
