Case 4:19-cv-00124-SMR-HCA Document 84 Filed 03/14/22 Page 1 of 28
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF IOWA
`CENTRAL DIVISION
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`Case No. 4:19-cv-00124-SMR-HCA
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`
`
`ORDER ON CROSS-MOTIONS FOR
`SUMMARY JUDGMENT
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`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,
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`
`Plaintiffs,
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`v.
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`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,
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`Defendants.
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`Plaintiffs are five non-profit organizations dedicated to animal protection, food safety, and
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`other grassroots advocacy issues. They gather evidence of animal abuse and other alleged illegal
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`conduct by conducting undercover investigations of the day-to-day activities at facilities where
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`they suspect wrongdoing occurs. Unsurprisingly, they typically need to conceal their true
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`identities and intentions to gain access to a facility, which is often gained through employment.
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`Plaintiffs filed this suit challenging Iowa Code § 717.3B, which they contend infringes on their
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`constitutional rights.
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`Defendants are the Governor of Iowa, the Attorney General of Iowa, and the County
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`Attorney for Montgomery County, Iowa. They are all sued in their official capacity because they
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`are officials with the power to enforce violations of § 717.3B.
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`1
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`Before the Court are Cross-Motions for Summary Judgment. Plaintiffs move for summary
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`judgment, arguing § 717A.3B violates the First Amendment of the United States Constitution
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`because it discriminates based on content and viewpoint and cannot survive strict scrutiny. [ECF
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`No. 55]. Defendants move for summary judgment as well, arguing the law does not regulate
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`protected speech under the First Amendment or, if it does regulate protected speech, it is content-
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`neutral and viewpoint-neutral and passes intermediate scrutiny. [ECF No. 62].
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`Both motions have been extensively briefed by the parties and the Court finds a hearing is
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`not necessary. See LR 7(c). For the reasons described below, Plaintiffs’ Motion for Summary
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`Judgment is GRANTED and Defendants’ Motion for Summary Judgment is DENIED.
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`I.
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`BACKGROUND1
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`Plaintiffs seek to advance the interests of their organizations by engaging in advocacy,
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`investigations, and litigation. Among the tactics used by Plaintiffs are undercover investigations.
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`To gain access to the facilities in which they seek to investigate, Plaintiffs will often conceal or
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`misrepresent their identities. [ECF No. 55-1 ¶ 6] (Pls.’ SUMF) (Walden Aff.). They aver that
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`their investigators never misrepresent their skills, fitness for the job, or make any other
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`misrepresentation which could pose a danger to the facility; the misrepresentations are only limited
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`to conceal their affiliation with the organization. Id. ¶ 7. Plaintiffs’ investigators are also trained
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`to not harm the facility, operations, property, or employees. Id. ¶ 34 (Kerr Aff.). Throughout the
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`investigation, the investigator acts as an ordinary employee, but documents any potential violations
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`of laws or regulations with hidden cameras. Id. ¶ 7 (Walden Aff.). The videos and photographs
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`are then used to seek enforcement of criminal and civil laws, encourage legislation and reform,
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`1 The facts of this case are relatively undisputed but where they are in dispute, the Court
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`will view the fact in the light most favorable to the nonmoving party. See Pedersen v. Bio-Med.
`Applications of Minn., 775 F.3d 1049, 1053 (8th Cir. 2015)
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`and educate the public. Id. Plaintiffs have conducted investigations in Iowa previously and wish
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`to do so again, but they allege Iowa Code § 717A.3B has a “chilling effect” on their activities. Id.
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`¶¶ 10, 32, 47, 61, 73.2
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`Iowa Code § 717A.3B is the second in a series of laws passed by the Iowa legislature aimed
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`at criminalizing undercover investigations such as the ones conducted by Plaintiffs. The first
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`version was Iowa Code § 717A.3A, passed in 2017. The same plaintiffs as here filed suit to enjoin
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`that law. See Animal Legal Def. Fund v. Reynolds, 353 F. Supp. 3d 812 (S.D. Iowa) (Reynolds I).
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`Senior United States District Court Judge James E. Gritzner granted the plaintiffs’ motion for
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`summary judgment and permanently enjoined the law. Id. Defendants appealed to the United
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`States Court of Appeals for the Eighth Circuit.
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`After Judge Gritzner entered the permanent injunction, but before the Eighth Circuit ruled
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`on the defendants’ appeal, the legislature passed Iowa Code § 717A.3B, which is the subject of
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`these Cross-Motions for Summary Judgment. The new law modified some of the language in
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`response to Judge Gritzner’s ruling but is substantially similar. Plaintiffs filed this suit to enjoin
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`§ 717A.3B. [ECF No. 1]. On December 2, 2019, Judge Gritzner preliminarily enjoined the law.
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`[ECF No. 41]. Plaintiffs filed this Motion for Summary Judgment on March 16, 2020, and
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`2 Plaintiffs’ Statement of Undisputed Material Facts describes examples of investigations
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`previously undertaken in Iowa. The affiant for Plaintiff Animal Legal Defense Fund (“ALDF”)
`attests that the organization previously conducted an animal welfare investigation at Cricket
`Hollow Animal Park in Manchester, Iowa. [ECF No. 55-1 ¶ 5] (Walden Aff.). Plaintiff People
`for the Ethical Treatment of Animals (“PETA”) also conducted an undercover investigation at a
`Hormel Foods supplier in Iowa and another investigation at a kosher slaughterhouse. Id. ¶ 31
`(Kerr Aff.). Plaintiff Iowa Citizens for Community Improvement (“CCI”) investigated a pork farm
`near Algona, Iowa where an investigator took photographs of the working conditions which served
`as the basis for an OSHA complaint. Id. ¶ 45 (Mason Aff.). Plaintiff Bailing Out Benji (“BOB”)
`states that it used false pretenses to a puppy mill in 2011 to uncover the harmful conditions in
`which the dogs were kept. Id. ¶ 58 (Callison Aff.). ALDF, CCI, and BOB declare they have
`resumed planning and have concrete plans to resume investigations in light of Judge Gritzner’s
`injunction of § 717A.3B. Id. ¶¶ 11, 49, 65.
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`Defendants cross-moved for summary judgment on April 27, 2020. [ECF Nos. 55; 62]. Pursuant
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`to the agreement of the parties, Judge Gritzner continued the case while awaiting the Eighth
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`Circuit’s ruling in Reynolds I. [ECF No. 77].
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`On August 10, 2021, the Eighth Circuit ruled on § 717A.3A, finding one of the provisions
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`to be constitutional but upholding Judge Gritzner’s finding on the other provision. See Animal
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`Legal Def. Fund v. Reynolds, 8 F.4th 781 (8th Cir. 2021) (“ALDF” 3).
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`II. ANALYSIS
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`A. First Amendment
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`“The First Amendment, applicable to the States through the Fourteenth Amendment,
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`prohibits the enactment of laws ‘abridging the freedom of speech.’” Reed v. Town of Gilbert,
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`576 U.S. 155, 163 (2015). A statute falls within the ambit of the First Amendment if it imposes a
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`burden “based on the content of the speech and the identity of the speaker.” Sorrell v. IMS Health
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`Inc., 564 U.S. 552, 567 (2011). A content-based restriction is a regulation based on “the topic
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`discussed or the idea or message expressed, drawing distinctions based on the message.” Reed,
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`576 U.S. at 163. Such content-based laws are “presumptively unconstitutional and may be justified
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`only if the government proves that [the law is] narrowly tailored to serve compelling state
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`interests.” Id. The government bears the burden of establishing a content-based restriction is
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`narrowly tailored to serve compelling state interests. Ashcroft v. ACLU, 542 U.S. 656, 660 (2004).
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`Some categories of content-based speech are “unprotected” under the First Amendment.
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`See, e.g., Miller v. California, 413 U.S. 15, 36 (1973) (obscenity); Pittsburgh Press Co. v.
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`Pittsburgh Comm’n on Hum. Rels., 413 U.S. 376, 388 (1973) (offers for illegal transactions);
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`3 For clarity, the appeal in Reynolds I will be referred to as ALDF. The Eighth Circuit’s
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`holding in the case will be discussed in further detail below.
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`Brandenburg v. Ohio, 395 U.S. 444, 448 (1969) (incitement); Watts v. United States,
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`394 U.S. 705, 707 (1969) (true threats); New York Times Co. v. Sullivan, 376 U.S. 254, 264,
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`(1964) (defamation); Donaldson v. Read Magazine, Inc., 333 U.S. 178, 190 (1948) (fraud);
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`Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942) (fighting words). However, the United
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`States Supreme Court has held that although certain categories of speech are unprotected, it does
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`not mean they are “entirely invisible to the Constitution.” R.A.V. v. City of St. Paul, 505 U.S.
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`377, 383 (1992). Rather, it means such speech can “be regulated because of their constitutionally
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`proscribable content,” without violating the commands of the First Amendment. Id. The interplay
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`of this framework on a particular category of speech is not always manifest and occasionally
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`requires further legal analysis.
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`One such category is false speech. In United States v. Alvarez, the Supreme Court
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`considered the constitutionality of the Stolen Valor Act of 2005. 567 U.S. 709 (2012). The Stolen
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`Valor Act made it a crime for anyone to falsely represent “verbally or in writing, to have been
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`awarded any decoration or medal authorized by Congress for the Armed Forces of the United
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`States.” Id. at 715 (quoting 18 U.S.C. § 704(b)). The defendant in the case, Xavier Alvarez, had
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`been indicted and convicted of violating the law after he introduced himself as a Medal of Honor
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`recipient at his first meeting as a new member of a local water board. Id. at 714. A six-justice
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`majority reversed Alvarez’s conviction, finding that the Stolen Valor Act did not comport with the
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`Constitution because the First Amendment, to a certain extent, tolerates and protects false
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`statements. Id. at 730. However, no single rationale attracted a five-justice majority.
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`The plurality opinion, written by Justice Kennedy, held that false speech did not run afoul
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`of the First Amendment unless it caused legally cognizable harm. Id. at 719. “Where false claims
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`are made to effect a fraud or secure moneys or other valuable considerations, say offers of
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`employment, it is well established that the Government may restrict speech without affronting the
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`First Amendment.” Id. at 723. Additionally, the Court found that false speech, at least false speech
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`that does not cause legally cognizable harm, was not one of the “few historic and traditional
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`categories” where “content-based restrictions on speech have been permitted.” Id. at 717.
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`Concurring in the judgment was Justice Breyer joined by Justice Kagan. Justice Breyer
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`wrote that the law was invalid under intermediate scrutiny as well as under the “exacting scrutiny”
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`applied by the plurality. Id. at 732 (Breyer, J., concurring). Under intermediate scrutiny, the two
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`justices held that the Stolen Valor Act violated the protections of the First Amendment because
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`the law lacked “limiting features . . . rang[ing] very broadly” and could apply “in family, social,
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`or other private contexts, where lies will often cause little harm.” Id. at 736. Acknowledging the
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`substantial justifications for the law, the concurrence suggested it would be constitutional if it was
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`tailored to “focus its coverage on lies most likely to be harmful or on contexts where such lies are
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`most likely to cause harm.” Id. at 738.
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`B. Iowa Code Section 717A.3A and Reynolds I
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`1. Reynolds I-District Court
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`In 2012, the Iowa legislature passed H.F. 589, titled “Agriculture Production Facility
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`Fraud,” which was signed into law by Governor Terry Branstad and codified as Iowa Code
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`§ 717A.3A. That law provides, in part:
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`A person is guilty of agricultural production facility fraud if the
`person willfully does any of the following:
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`a. Obtains access to an agricultural production facility by false
`pretenses.
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`b. Makes a false statement or representation as part of an application
`or agreement to be employed at an agricultural production facility,
`if the person knows the statement to be false, and makes the
`statement with an intent to commit an act not authorized by the
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`owner of the agricultural production facility, knowing that the act is
`not authorized.
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`Iowa Code § 717A.3A(1)(a)-(b) (2012). A first conviction is a serious misdemeanor and
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`subsequent convictions are punished as aggravated misdemeanors. Id. § 717A.3A(2)(a)–(b).
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`As mentioned, Judge Gritzner granted summary judgment to Plaintiffs on their First
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`Amendment claim. Id. at 827. Relying on Alvarez, he found that the false statements identified
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`in § 717A.3A were protected speech because they did not cause “legally cognizable harm.” Id.
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`at 822. Judge Gritzner also determined that § 717A.3A was content-based because “‘enforcement
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`authorities must necessarily examine the content’ of an individual’s statement to determine
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`whether the individual violates the statute.” Id. (quoting FCC v. League of Women Voters of Cal.,
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`468 U.S. 364, 383 (1984)). The content, for purposes of § 717A.3A, was the veracity of the
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`statements made by the trespasser.
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`Judge Gritzner did not expressly determine whether strict or intermediate scrutiny applied
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`but found that under either test, § 717A.3A failed. Id. at 824. Under strict scrutiny, the
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`governmental interests proffered by the defendants—private property and biosecurity—were
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`“important” but they were “not compelling in the First Amendment sense.” Id. Faulting
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`defendants for offering no record illustrating how biosecurity is compromised by a deceptive
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`trespasser, Judge Gritzner refused to “assume that biological harm turns on a human vector making
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`a false statement unrelated to such harm in order to gain access to the facility. Protecting
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`biosecurity is therefore purely speculative and cannot constitute a compelling state interest.” Id.
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`at 825. Furthermore, the prohibitions in § 717A.3A were not narrowly tailored to serve those
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`interests. He found that § 717A.3A was not narrowly tailored because similar prohibitions already
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`existed in other sections of the Iowa Code. Id. at 825–26 (citing Iowa Code §§ 717A.2; 716.7(2);
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`717A.4). The law did not pass muster under intermediate scrutiny either because it was too “broad
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`in scope” and could implicate liability “where harm is unlikely and the need for prohibition is
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`small.” Id. at 827.
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`Beyond its problems with interests and tailoring, Judge Gritzner found § 717A.3A to be
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`under- and overinclusive. It was underinclusive because it did “nothing to deter the exact same
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`alleged harms—trespass and biosecurity breaches—from individuals who proceed to access or
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`enter a facility without false pretense or misrepresentation.” Id. at 826. The overinclusion problem
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`arose from the lack of limitation on conduct covered by the law. Judge Gritzner found the
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`provision, which prohibited making “a false statement or representation as part of an application
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`or agreement to be employed at an agricultural production facility . . . with an intent to commit an
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`act not authorized by the owner,” could sweep up innocent conduct. Id. Judge Gritzner granted
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`the plaintiffs’ summary judgment motion and entered a permanent injunction against the law on
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`February 14, 2019.
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`2. Reynolds I—Eighth Circuit
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`On August 10, 2021, the Eighth Circuit affirmed in part and reversed in part. The divided
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`holding turned on the distinction between the two provisions of § 717A.3A(1). The Eighth Circuit
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`held the first provision, § 717A.3A(1)(a) (the “Access Provision”), did not violate the First
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`Amendment but the second provision, § 717A.3A(1)(b) (the “Employment Provision”), did run
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`afoul of the Free Speech Clause. ALDF, 8 F.4th at 788.
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`In its decision, the Eighth Circuit agreed with Judge Gritzner that both provisions
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`“constitute direct regulations of speech” because they target “false pretenses” and “false
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`statements.” Id. at 784. Pretense is nonverbal expressive conduct because “pretenses” requires
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`expression of information. Id. The court also found that both provisions were content-based
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`regulations because “[e]ach prohibits expression that is ‘false,’ and an observer must examine the
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`content of the speech to determine whether it is prohibited.” Id. (citing Reed, 576 U.S. at 163–64).
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`However, the panel majority disagreed with Judge Gritzner’s holding on whether trespass
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`constituted a legally cognizable harm. Whereas Judge Gritzner found the false statements
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`implicated by § 717A.3A did not cause “legally cognizable harm” or “material gain,” the Eighth
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`Circuit held that “harm flowing from trespass is legally cognizable.” Id. at 786 (quoting Nichols
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`v. City of Evansdale, 687 N.W.2d 562, 573 (Iowa 2004)). In the case of trespass, the court held,
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`nominal damages can compensate a property owner for the invasion of privacy and violation of
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`their right to exclude, both of which are “legally cognizable harms.” Id. “Nominal damages are
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`not ‘purely symbolic, a mere judicial token that provides no actual benefit to the plaintiff.’” Id.
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`(quoting Uzuegbunam v. Preczewski, 141 S. Ct. 792, 801 (2021)). In short, the Eighth Circuit held
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`that the Access Provision was “consistent with the First Amendment” because it prohibited the
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`utterance of false statements which result in a trespass and “in light of Alvarez . . . intentionally
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`false speech undertaken to accomplish a legally cognizable harm may be proscribed without
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`violating the First Amendment.” Id.
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`However, as to the Employment Provision, the ALDF Court held that it violated the First
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`Amendment’s guarantee of freedom of speech. The infirmity in the Employment Provision was
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`that it was “not limited to false claims that are made ‘to secure’ an offer of employment; it allows
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`for prosecution of those who make false statements that are not capable of influencing an offer of
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`employment.” Id. at 787. The court hypothesized various scenarios where a job applicant flatters
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`themselves in immaterial ways during a job interview. Id. This tailoring issue—the lack of a
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`materiality requirement in the Employment Provision—resulted in the provision failing both strict
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`scrutiny (Alvarez plurality) and intermediate scrutiny (Alvarez concurrence). Therefore, the
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`provision was unconstitutionally broad. Id.
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`C. Iowa Code Section 717A.3B and Reynolds II
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`In response to Judge Gritzner’s injunction in Reynolds I, the Iowa legislature passed a new
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`law, § 717A.3B.4 This second iteration bears substantial resemblance to its predecessor. It
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`provides, in relevant part:
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`1. A person commits agricultural production facility trespass if the
`person does any of the following:
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`a. Uses deception . . . on a matter that would reasonably result in a
`denial of access to an agricultural production facility that is not open
`to the public, and, through such deception, gains access to the
`agricultural production facility, with the intent to cause physical or
`economic harm or other injury to the agricultural production
`facility's operations, agricultural animals, crop, owner, personnel,
`equipment, building, premises, business interest, or customer[; or]
`[“Access Provision”]
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`b. Uses deception . . . on a matter that would reasonably result in a
`denial of an opportunity to be employed at an agricultural
`production facility that is not open to the public, and, through such
`deception, is so employed, with the intent to cause physical or
`economic harm or other injury to the agricultural production
`facility's operations, agricultural animals, crop, owner, personnel,
`equipment, building, premises, business interest, or customer.
`[“Employment Provision”].
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`Iowa Code § 717A.3B(1). Deception includes, but is not limited to, “[c]reating or confirming
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`another’s belief or impression as to the existence or nonexistence of a fact or condition which is
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`false and which the actor does not believe to be true,” or “[f]ailing to correct a false belief or
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`impression as to the existence or nonexistence of a fact or condition which the actor previously
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`4 The bill’s sponsor said during a floor debate on the bill, “House File 649 stems from a
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`federal district court decision that overturned our 2012 agricultural production facility fraud law.”
`[ECF No. 55 ¶ 82] (Representative Jared Klein).
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`has created or confirmed.” Id. § 702.9. Section 717A.3B also provides for conspirator liability
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`for anyone “who conspires with another . . . to commit agricultural production facility trespass.”
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`Id. § 717A.3B(3). As is the case for § 717A.3A, a first conviction under § 717A.3B is a serious
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`misdemeanor, and any subsequent convictions are aggravated misdemeanors. Id. § 717A.3B(2).
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`On April 22, 2019, Plaintiffs filed a Complaint challenging § 717A.3B on the grounds that
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`the law violates the First Amendment on its face. [ECF No. 1 ¶¶ 120–151]. Count I contends the
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`law is overbroad. Count II brings a First Amendment challenge based on Plaintiffs’ allegations
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`that the law discriminates based on content and viewpoint. In Count III, Plaintiffs maintain
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`§ 717A.3B is unconstitutionally vague. And Count IV of the Complaint alleges the law violates
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`Plaintiffs’ Due Process rights protected by the Fourteenth Amendment by substantially burdening
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`their First Amendment rights. Defendants soon moved to dismiss the Complaint and Plaintiffs
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`moved for a preliminary injunction. [ECF Nos. 18; 25]. Judge Gritzner granted Plaintiffs’ motion
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`for a preliminary injunction and denied Defendants’ motion to dismiss. [ECF No. 41]. Plaintiffs
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`filed a Motion for Summary Judgment, [ECF No. 55], and Defendants did so too, [ECF No. 62].
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`After the Eighth Circuit issued its ruling in ALDF, the parties provided supplemental briefing on
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`the implications for this case. [ECF Nos. 81; 82; 83].
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`D. Cross-Motions for Summary Judgment
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`1. Summary Judgment Standard
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`Summary judgment is proper when “the movant shows that there is no genuine dispute as
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`to any material fact and the movant is entitled to judgment as a matter of law.”
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`Fed. R. Civ. P. 56(a); Paulino v. Chartis Claims, Inc., 774 F.3d 1161, 1163 (8th Cir. 2014).
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`“A dispute is genuine if the evidence is such that it could cause a reasonable jury to return a verdict
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`for either party; a fact is material if its resolution affects the outcome of the case.” Amini v. City
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`of Minneapolis, 643 F.3d 1068, 1074 (8th Cir. 2011) (citing Anderson v. Liberty Lobby, Inc.,
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`477 U.S. 242, 248, 252 (1986)). But “[c]redibility determinations, the weighing of the evidence,
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`and the drawing of legitimate inferences from the facts are jury functions, not those of the judge.”
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`Anderson, 477 U.S. at 255. To preclude the entry of summary judgment, the nonmovant must
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`make a sufficient showing on every essential element of its case for which it has the burden of
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`proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
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`2. Cross-Motions for Summary Judgment
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`Both parties move for summary judgment. Plaintiffs argue that § 717A.3B criminalizes
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`speech protected by the First Amendment and discriminates based on content and viewpoint. They
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`assert it is subject to strict scrutiny, a standard it cannot pass. [ECF No. 58]. Defendants respond
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`that the law does not regulate speech and, even if it does, it is content- and viewpoint neutral. They
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`assert the law survives strict scrutiny anyway and thus request summary judgment in their favor.
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`[ECF No. 62].
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`a. Standing
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`In their Motion for Summary Judgment, Defendants write that they do not challenge
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`Plaintiffs’ standing to bring their claims but correctly point out that standing is a jurisdictional
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`requirement. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990). The standing requirement
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`is “rooted in the traditional understanding of a case or controversy.” Spokeo, Inc. v. Robins,
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`578 U.S. 330, 338 (2016). This means that courts have an independent obligation to confirm their
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`jurisdiction, including standing. Allen v. Wright, 468 U.S. 737, 750 (1984). Standing requires a
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`plaintiff establish an injury in fact, a causal connection between their injury and the challenged
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`law, and that a favorable decision will likely redress their injury. Lujan v. Defs. of Wildlife,
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`504 U.S. 555, 560–61 (1992). To establish an injury in fact, a plaintiff must show an
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`individualized injury; that is concrete and particularized; and actual or imminent, not conjectural
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`or hypothetical. Id. at 560.
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`When an injury has not occurred but a plaintiff alleges it is imminent, a court must assess:
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`(1) whether plaintiffs allege an intent to engage in a course of conduct arguably affected with a
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`constitutional interest; (2) whether the intended future conduct is arguably proscribed by the statute
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`they are challenging; (3) whether the threat of future enforcement is substantial. Susan B. Anthony
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`List v. Driehaus, 573 U.S. 149, 161–164 (2014). The Eighth Circuit has held that this standard for
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`a pre-enforcement First Amendment challenge is “forgiving.” Turtle Island Foods, SPC v.
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`Thompson, 992 F.3d 694, 699 (8th Cir. 2021) (quoting Susan B. Anthony List, 573 U.S. at 162)).
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`ALDF, PETA, CCI, and BOB all have standing because they have credibly alleged that
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`they seek to engage in undercover investigations which would likely violate § 717A.3B. They
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`face a credible threat of prosecution according to their affidavits describing their investigations, a
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`point which Defendants do not dispute. See [ECF No. 55-1] (Pls.’ SUMF); [ECF No. 66 at 7]
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`(Defs.’ Comb. Brief) (“Defendants, for purposes of summary judgment, do not dispute any of the
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`facts in Plaintiffs’ [SUMF].”). Plaintiffs have all offered sufficient evidence to support
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`organizational standing on the basis of a frustrated mission and diversion of financial resources
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`based on a credible threat of prosecution. See Holder v. Humanitarian Law Project, 561 U.S. 1, 16
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`(2010). Center for Food Safety (“CFS”) alleges much of their work relies on information they
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`receive from the other Plaintiffs. [ECF No. 55-1 ¶ 75]. CFS has standing based on an “information
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`injury” resulting from a deprivation of information they no longer receive from the other Plaintiffs.
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`See Va. State Bd. of Pharm. v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 757 (1976) (A
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`“right to receive” information can be a basis for a First Amendment claim).
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`b. Conduct or Speech
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`The first inquiry is whether § 717A.3B regulates speech or expressive conduct. Defendants
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`insist that § 717A.3B does not regulate either because a trespass “symbolizes nothing,” thus it is
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`not an act of communication qualifying for First Amendment protections. Non-expressive conduct
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`is not protected by the First Amendment. See United States v. O’Brien, 391 U.S. 367, 376 (1968).
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`To that point, conduct does not receive First Amendment protections solely by virtue of
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`accompanying speech. Rumsfeld v. Forum for Acad. & Inst’l Rights, Inc., 547 U.S. 47, 66 (2006).
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`Only “conduct that is inherently expressive” will fall within the purview of the First Amendment.
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`Id. A clear way to delineate the line between a law regulating conduct and a law regulating speech
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`is that the former implicates what a person may or may not “do” whereas a law implicating the
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`latter pertains to what a person may or may not “say.” Id. at 60.
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`Judge Gritzner determined that § 717A.3B, as was the case with § 717A.3A, regulated
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`speech and not merely conduct. [ECF No. 41 at 7]; see also Reynolds I, 353 F. Supp. 3d at 821
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`(“Speech is necessarily implicated by § 717A.3A because one cannot violate § 717A.3A without
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`engaging in speech.”) (internal quotations and emphasis omitted); accord ALDF, 8 F.4th at 784
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`(finding both provisions of § 717A.3A “constitute direct regulations of speech.”). Consistent with
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`Judge Gritzner’s finding in this case, and the Eighth Circuit’s holding in ALDF, the Court holds
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`that § 717A.3B is a speech regulation. This is because “deception” requires an expression of
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`information in which the contents of the communication, whether verbal or nonverbal, must be
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`examined to determine whether it was in fact deceptive. See ALDF, 8 F.4th at 784.
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`c. Protected or Unprotected Speech
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`Although the parties spill considerable ink arguing whether § 717A.3B implicates
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`protected speech, it is clear in light of the Eighth Circuit’s holding in ALDF that both provisions
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`regulate unprotected speech. The ALDF Court found that deceptive trespass caused “legally
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`cognizable harm” under Alvarez, therefore false speech that enables a trespass is not protected.
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`ALDF, 8 F.4th at 786 (“[I]n light of Alvarez . . . intentionally false speech undertaken to accomplish
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`a legally cognizable harm may be proscribed without violating the First Amendment.”). The
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`“Employment” Provision of § 717A.3B remedies the constitutional deficiency found by the ALDF
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`Court in § 717A.3A by requiring any deception used to gain employment at an agricultural
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`production facility be “on a matter that would reasonably result in a denial of an opportunity to be
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`employed . . . .” Iowa Code § 717A.3B(1)(b); see also ALDF, 8 F.4th at 787 (finding a less
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`restrictive means was available by “proscrib[ing] only false statements that are material to a hiring
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`decision”). The ALDF Court found the Access Provision of § 717A.3A did not regulate protected
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`speech and the Court holds that neither provision of § 717A.3B does either.
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`d. Content or Viewpoint Based Regulation
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`Simply because speech is unprotected does not grant a free license for the government to
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`regulate that speech based on viewpoint. See R.A.V., 505 U.S. at 383. The Eighth Circuit
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`determined in ALDF that § 717A.3A was content based because the contents of the speech at issue
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`needed to be examined to determine if the trespasser gained access or employment based on “false
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`pretenses.” ALDF, 8 F.4th at 784. That holding applies to § 717A.3B as well because any
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`“deception” requires an examination of the contents of speech or expressive conduct to ascertain
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`whether it was deceiving.
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`Viewpoint discrimination arises “[w]hen the government targets not subject matter, but
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`particular views taken by speakers on a subject.” Rosenberger v. Rector & Visitors of the Univ. of
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`Va., 515 U.S. 819, 829 (1995). Viewpoint discrimination is a particularly “egregious form of
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`content discrimination.” Id.; see also Reed, 576 U.S. at 168 (“Government discrimination among
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`viewpoints—or the regulation of speech based on the specific motivating ideology or opinion or
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`perspective of the speaker—is a more blatant and egregious form of content discrimination.”).
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`Plaintiffs contend the law discriminates based on viewpoint b