Animal Legal Def. Fund v. Reynolds

Docket NumberCase No. 4:19-cv-00124-SMR-HCA
Decision Date14 March 2022
Parties ANIMAL LEGAL DEFENSE FUND, Bailing Out Benji, Iowa Citizens for Community Improvement, People for the Ethical Treatment of Animals, Inc., and Center for Food Safety, Plaintiffs, v. Kimberly REYNOLDS, in her official capacity as Governor of Iowa, Tom Miller, in his official capacity as Attorney General of Iowa, and Drew B. Swanson, in his official capacity as Montgomery County Attorney, Defendants.
CourtU.S. District Court — Southern District of Iowa

Rita N. Bettis Austen, ACLU of Iowa Foundation, Des Moines, IA, Alan K. Chen, Pro Hac Vice, Justin F. Marceau, Pro Hac Vice, University of Denver Sturm College of Law, Denver, CO, Cristina Rachel Stella, Pro Hac Vice, Kelsey Rinehart Eberly, Pro Hac Vice, Animal Legal Defense Fund, Cotati, CA, David Samuel Muraskin, Pro Hac Vice, Public Justice, P.C., Washington, DC, Matthew Strugar, Pro Hac Vice, Law Office of Matthew Strugar, Los Angeles, CA, for Plaintiffs Animal Legal Defense Fund, Bailing Out Benji, Iowa Citizens for Community Improvement, People for the Ethical Treatment of Animals, Inc., Center for Food Safety.

Jacob John Larson, Iowa Attorney General, Des Moines, IA, for Defendants.

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

STEPHANIE M. ROSE, CHIEF JUDGE

Plaintiffs are five non-profit organizations dedicated to animal protection, food safety, and other grassroots advocacy issues. They gather evidence of animal abuse and other alleged illegal conduct by conducting undercover investigations of the day-to-day activities at facilities where they suspect wrongdoing occurs. Unsurprisingly, they typically need to conceal their true identities and intentions to gain access to a facility, which is often gained through employment. Plaintiffs filed this suit challenging Iowa Code § 717.3B, which they contend infringes on their constitutional rights.

Defendants are the Governor of Iowa, the Attorney General of Iowa, and the County Attorney for Montgomery County, Iowa. They are all sued in their official capacity because they are officials with the power to enforce violations of § 717.3B.

Before the Court are Cross-Motions for Summary Judgment. Plaintiffs move for summary judgment, arguing § 717A.3B violates the First Amendment of the United States Constitution because it discriminates based on content and viewpoint and cannot survive strict scrutiny. [ECF No. 55]. Defendants move for summary judgment as well, arguing the law does not regulate protected speech under the First Amendment or, if it does regulate protected speech, it is content-neutral and viewpoint-neutral and passes intermediate scrutiny. [ECF No. 62].

Both motions have been extensively briefed by the parties and the Court finds a hearing is not necessary. See LR 7(c). For the reasons described below, PlaintiffsMotion for Summary Judgment is GRANTED and DefendantsMotion for Summary Judgment is DENIED.

I. BACKGROUND1

Plaintiffs seek to advance the interests of their organizations by engaging in advocacy, investigations, and litigation. Among the tactics used by Plaintiffs are undercover investigations. To gain access to the facilities in which they seek to investigate, Plaintiffs will often conceal or misrepresent their identities. [ECF No. 55-1 ¶ 6] (Pls.’ SUMF) (Walden Aff.). They aver that their investigators never misrepresent their skills, fitness for the job, or make any other misrepresentation which could pose a danger to the facility; the misrepresentations are only limited to conceal their affiliation with the organization. Id. ¶ 7. Plaintiffs’ investigators are also trained to not harm the facility, operations, property, or employees. Id. ¶ 34 (Kerr Aff.). Throughout the investigation, the investigator acts as an ordinary employee, but documents any potential violations of laws or regulations with hidden cameras. Id. ¶ 7 (Walden Aff.). The videos and photographs are then used to seek enforcement of criminal and civil laws, encourage legislation and reform, and educate the public. Id. Plaintiffs have conducted investigations in Iowa previously and wish to do so again, but they allege Iowa Code § 717A.3B has a "chilling effect" on their activities. Id. ¶¶ 10, 32, 47, 61, 73.2

Iowa Code § 717A.3B is the second in a series of laws passed by the Iowa legislature aimed at criminalizing undercover investigations such as the ones conducted by Plaintiffs. The first version was Iowa Code § 717A.3A, passed in 2017. The same plaintiffs as here filed suit to enjoin that law. See Animal Legal Def. Fund v. Reynolds , 353 F. Supp. 3d 812 (S.D. Iowa) ( Reynolds I ). Senior United States District Court Judge James E. Gritzner granted the plaintiffsmotion for summary judgment and permanently enjoined the law. Id. Defendants appealed to the United States Court of Appeals for the Eighth Circuit.

After Judge Gritzner entered the permanent injunction, but before the Eighth Circuit ruled on the defendants’ appeal, the legislature passed Iowa Code § 717A.3B, which is the subject of these Cross-Motions for Summary Judgment. The new law modified some of the language in response to Judge Gritzner's ruling but is substantially similar. Plaintiffs filed this suit to enjoin § 717A.3B. [ECF No. 1]. On December 2, 2019, Judge Gritzner preliminarily enjoined the law. [ECF No. 41]. Plaintiffs filed this Motion for Summary Judgment on March 16, 2020, and Defendants cross-moved for summary judgment on April 27, 2020. [ECF Nos. 55; 62]. Pursuant to the agreement of the parties, Judge Gritzner continued the case while awaiting the Eighth Circuit's ruling in Reynolds I . [ECF No. 77].

On August 10, 2021, the Eighth Circuit ruled on § 717A.3A, finding one of the provisions to be constitutional but upholding Judge Gritzner's finding on the other provision. See Animal Legal Def. Fund v. Reynolds , 8 F.4th 781 (8th Cir. 2021) (" ALDF "3 ).

II. ANALYSIS
A. First Amendment

"The First Amendment, applicable to the States through the Fourteenth Amendment, prohibits the enactment of laws ‘abridging the freedom of speech.’ " Reed v. Town of Gilbert , 576 U.S. 155, 163, 135 S.Ct. 2218, 192 L.Ed.2d 236 (2015). A statute falls within the ambit of the First Amendment if it imposes a burden "based on the content of the speech and the identity of the speaker." Sorrell v. IMS Health Inc. , 564 U.S. 552, 567, 131 S.Ct. 2653, 180 L.Ed.2d 544 (2011). A content-based restriction is a regulation based on "the topic discussed or the idea or message expressed, drawing distinctions based on the message." Reed , 576 U.S. at 163, 135 S.Ct. 2218. Such content-based laws are "presumptively unconstitutional and may be justified only if the government proves that [the law is] narrowly tailored to serve compelling state interests." Id. The government bears the burden of establishing a content-based restriction is narrowly tailored to serve compelling state interests. Ashcroft v. ACLU , 542 U.S. 656, 660, 124 S.Ct. 2783, 159 L.Ed.2d 690 (2004).

Some categories of content-based speech are "unprotected" under the First Amendment. See, e.g., Miller v. California , 413 U.S. 15, 36, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) (obscenity); Pittsburgh Press Co. v. Pittsburgh Comm'n on Hum. Rels. , 413 U.S. 376, 388, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973) (offers for illegal transactions); Brandenburg v. Ohio , 395 U.S. 444, 448, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (incitement); Watts v. United States , 394 U.S. 705, 707, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969) (true threats); New York Times Co. v. Sullivan , 376 U.S. 254, 264, 84 S.Ct. 710, 11 L.Ed.2d 686, (1964) (defamation); Donaldson v. Read Magazine, Inc. , 333 U.S. 178, 190, 68 S.Ct. 591, 92 L.Ed. 628 (1948) (fraud); Chaplinsky v. New Hampshire , 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942) (fighting words). However, the United States Supreme Court has held that although certain categories of speech are unprotected, it does not mean they are "entirely invisible to the Constitution." R.A.V. v. City of St. Paul , 505 U.S. 377, 383, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). Rather, it means such speech can "be regulated because of their constitutionally proscribable content," without violating the commands of the First Amendment. Id. The interplay of this framework on a particular category of speech is not always manifest and occasionally requires further legal analysis.

One such category is false speech. In United States v. Alvarez , the Supreme Court considered the constitutionality of the Stolen Valor Act of 2005. 567 U.S. 709, 132 S.Ct. 2537, 183 L.Ed.2d 574 (2012). The Stolen Valor Act made it a crime for anyone to falsely represent "verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States." Id. at 715, 132 S.Ct. 2537 (quoting 18 U.S.C. § 704(b) ). The defendant in the case, Xavier Alvarez, had been indicted and convicted of violating the law after he introduced himself as a Medal of Honor recipient at his first meeting as a new member of a local water board. Id. at 714, 132 S.Ct. 2537. A six-justice majority reversed Alvarez's conviction, finding that the Stolen Valor Act did not comport with the Constitution because the First Amendment, to a certain extent, tolerates and protects false statements. Id. at 730, 132 S.Ct. 2537. However, no single rationale attracted a five-justice majority.

The plurality opinion, written by Justice Kennedy, held that false speech did not run afoul of the First Amendment unless it caused legally cognizable harm. Id. at 719, 132 S.Ct. 2537. "Where false claims are made to effect a fraud or secure moneys or other valuable considerations, say offers of employment, it is well established that the Government may restrict speech without affronting the First Amendment." Id. at 723, 132 S.Ct. 2537. Additionally, the Court found that false speech, at least false speech that does not cause legally cognizable harm, was not one of the "few historic and...

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