Five animal-welfare groups originally sued Iowa officials, arguing that Iowa Code § 727.8A violated their members’ First Amendment rights on its face and as applied by chilling their speech. The district court initially agreed, deciding the statute was facially unconstitutional and permanently enjoining its enforcement.
The Eighth Circuit reversed that initial ruling, holding that the statute is not unconstitutional on its face because it can be applied in some instances without violating the Constitution. On remand, two groups pursued as-applied challenges, arguing that the statute violates their members’ rights when applied to prevent them from recording on property open to the public after they have been asked to leave but not explicitly told to stop recording.
The district court dismissed these challenges, and Iowa Citizens for Community Improvement (ICCI) appealed. ICCI alleged in the underlying case that its members intentionally record themselves committing ordinary trespasses at political and corporate sites to draw attention to their activities, arguing that the heightened penalties for trespass-surveillance have chilled their speech.
In its decision filed April 23, the Eighth Circuit affirmed the dismissal, holding that applying § 727.8A to proscribe ICCI’s members’ alleged conduct does not violate the First Amendment. The court addressed standing, ripeness, and constitutionality in its analysis.
The court rejected the officials’ arguments that ICCI lacked standing or that its challenge was unripe, relying on its prior decision in the case which found ICCI had the strongest factual basis to establish standing. The court noted that ICCI alleged 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.
On the merits, the court applied intermediate scrutiny because § 727.8A is a content-neutral time, place, and manner restriction. ICCI conceded that the statute serves a substantial state interest in protecting property and privacy rights, which the court noted is an important government interest.
The court held that the statute is narrowly tailored to target the harm of trespass-surveillance, reasoning that recordings can be disseminated widely and indefinitely, exacerbating the harm ordinary trespassers cause to property and privacy rights. The court noted that ICCI’s members plainly want to engage in the exact misconduct § 727.8A is narrowly tailored to proscribe.
ICCI argued that 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. The court called this argument nonsensical, stating that when a property owner uses his power to exclude by ejecting a trespasser, he necessarily exercises his lesser right to stop the trespasser from unlawfully recording on his property.
The court also rejected ICCI’s suggestion that Iowa’s interests in protecting property and privacy rights are not implicated when the locations at issue are otherwise open to the public, noting that property owners forfeit neither their right to exclude nor to control their property by opening it to the public for a certain purpose.
ICCI further argued that officials failed to produce evidence demonstrating Iowa needed to proscribe all the speech covered by the statute to achieve its interests. The court dismissed this argument, noting that § 727.8A is subject to intermediate rather than strict scrutiny and therefore need not be the least speech-restrictive means of advancing the government’s interests.
The Eighth Circuit concluded that the officials can apply § 727.8A to proscribe the conduct ICCI contends its members engage in, affirming the district court’s judgment dismissing ICCI’s as-applied challenge.