Key Points

  • Eighth Circuit affirms dismissal of as-applied First Amendment challenge to Iowa Code § 727.8A.
  • Court holds that recording while trespassing on private property is not protected speech under the First Amendment.
  • Statute survives intermediate scrutiny because it serves a substantial government interest in property and privacy rights.
  • Ruling provides a data point on the constitutionality of ag-gag laws in the Eighth Circuit.

The U.S. Court of Appeals for the Eighth Circuit on April 23 affirmed the dismissal of an as-applied First Amendment challenge to Iowa's trespass-surveillance statute, holding that the law may constitutionally prohibit recording while trespassing on private property even if the property is otherwise open to the public.

Writing for a unanimous panel, Judge Grasz concluded that the statute, Iowa Code § 727.8A, survives intermediate scrutiny as a content-neutral time, place, and manner restriction. The court rejected the argument that the law chilled protected speech when applied to members of plaintiff Iowa Citizens for Community Improvement (ICCI) who intentionally record themselves after being asked to leave but not specifically ordered to stop recording.

The panel found no First Amendment violation, noting that 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.' The court emphasized that the owner's right to exclude encompasses the right to bar recording, stating: '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.'

On standing and ripeness, the court adhered to its prior ruling that ICCI's allegations of a credible threat of prosecution and chilled speech satisfied Article III requirements. 'ICCI's as-applied challenge rests on these same allegations, so it has standing to pursue this challenge for the reasons we explained previously,' the opinion said.

The court further rejected ICCI's contention that the state's interest in protecting property and privacy is weaker when the property is open to the public. The panel held that 'property owners forfeit neither their right to exclude nor to control their property by opening it to the public for a certain purpose.' Because ICCI's members 'plainly want to engage in the exact misconduct § 727.8A is narrowly tailored to proscribe,' the as-applied challenge failed.