`
`United States Court of Appeals
` For the Eighth Circuit
`___________________________
`
`No. 19-1364
`___________________________
`
`Animal Legal Defense Fund; Iowa Citizens for Community Improvement; Bailing
`Out Benji; People for The Ethical Treatment of Animals, Inc.; Center for Food Safety,
`
`lllllllllllllllllllllPlaintiffs - Appellees,
`
`v.
`
`Kimberly Reynolds; Tom Miller, Attorney General of Iowa; Drew B. Swanson,
`Montgomery County Attorney,
`
`lllllllllllllllllllllDefendants - Appellants.
`
`------------------------------
`
`Brooke Kroeger; Ted Conover; Iowa Federation of Labor, AFL-CIO; Scholars of
`First Amendment and Information Law; Iowa Freedom of Information Council;
`United Farm Workers of America; Erwin Chemerinsky; 23 Media Organizations
`and Associations,
`
`lllllllllllllllllllllAmici on Behalf of Appellee(s).
` ____________
`
`Appeal from United States District Court
`for the Southern District of Iowa - Des Moines
` ____________
`
` Submitted: September 22, 2020
`Filed: August 10, 2021
`____________
`
`
`
`

`

`Before COLLOTON, GRUENDER, and GRASZ, Circuit Judges.
`____________
`
`
`COLLOTON, Circuit Judge.
`
`In this appeal, we consider whether an Iowa statute prohibiting accessing
`agricultural production facilities by false pretenses and making false statements as
`part of an employment application to an agricultural production facility violates the
`First Amendment. The district court ruled that both provisions are unconstitutional
`and enjoined their enforcement. We affirm in part and reverse in part.
`
`I.
`
`In 2012, the Iowa General Assembly passed a bill entitled “Agricultural
`Production Facility Fraud.” The statute states, in relevant part:
`
`A person is guilty of agricultural production facility fraud
`if the person willfully does any of the following:
`
`a. Obtains access to an agricultural production facility by
`false pretenses.
`
`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 owner of the agricultural
`production facility, knowing that the act is not authorized.
`
`Iowa Code § 717A.3A(1)(a)-(b) (2012). A first conviction under the statute
`constitutes a serious misdemeanor, and any subsequent conviction constitutes an
`aggravated misdemeanor. Id. § 717A.3A(2)(a)-(b).
`
`-2-
`
`

`

`Several organizations sued three Iowa officials in their official capacities:
`Governor Kimberly Reynolds, Attorney General Tom Miller, and Montgomery
`County Attorney Drew Swanson. The plaintiffs asserted, among other things, that the
`statute abridged their freedom of speech in violation of the First and Fourteenth
`Amendments. Specifically, they alleged that but for the statute, they and their
`investigators would assume “false pretenses” and make “false statements” in the
`course of obtaining access to, or employment with, agricultural production facilities
`for the purpose of publicizing the treatment of animals at these facilities.
`
`The district court granted summary judgment for the plaintiffs after concluding
`that both Iowa Code § 717A.3A(1)(a) (the “Access Provision”) and § 717A.3A(1)(b)
`(the “Employment Provision”) violate the First Amendment. The court entered an
`injunction against enforcement of the entire statute, § 717A.3A, including its
`punishment provisions in § 717A.3A(2)-(3). The State appeals, arguing that both
`disputed provisions are constitutional.
`
`II.
`
`The First Amendment, incorporated against the States through the Fourteenth
`Amendment, provides that “Congress shall make no law . . . abridging the freedom
`of speech.” As a general matter, this “means that government has no power to restrict
`expression because of its message, its ideas, its subject matter, or its content.” Nev.
`Comm’n on Ethics v. Carrigan, 564 U.S. 117, 121 (2011) (internal quotation
`omitted). “Content-based laws” are “those that target speech based on its
`communicative content.” Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015). In
`general, content-based laws “are subject to strict scrutiny” and “are presumptively
`unconstitutional.” Id. at 163-64.
`
`Both the Access Provision and the Employment Provision constitute direct
`regulations of speech. The Access Provision targets false “pretenses,” Iowa Code
`
`-3-
`
`

`

`§ 717A.3A(1)(a), and the Employment Provision targets false “statement[s],” id.
`§ 717A.3A(1)(b). Pretenses may consist of nonverbal conduct, but that conduct
`constitutes “pretenses” only because it expresses information. “A law directed at the
`communicative nature of conduct” is treated like “a law directed at speech itself.”
`Texas v. Johnson, 491 U.S. 397, 406 (1989) (emphasis and internal quotation
`omitted). Thus, the Access Provision’s regulation of “pretenses,” like the regulation
`of “statements,” constitutes a direct regulation of speech. Both provisions also target
`expression for restriction on the basis of its content. Each prohibits expression that
`is “false,” and an observer must examine the content of the speech to determine
`whether it is prohibited. See Reed, 576 U.S. at 163-64; FCC v. League of Women
`Voters of Cal., 468 U.S. 364, 383 (1984).
`
`In debating the constitutionality of the statute, the parties focus on United
`States v. Alvarez, 567 U.S. 709 (2012). Alvarez analyzed whether the Stolen Valor
`Act of 2005 violated the First Amendment by making it a crime for a person to
`“falsely represent[] himself or herself, verbally or in writing, to have been awarded
`any decoration or medal authorized by Congress for the Armed Forces.” Id. at 715-16
`(plurality opinion); see Pub. L. No. 109-437, § 3, 120 Stat. 3266, 3266 (2006)
`(current version at 18 U.S.C. § 704(b)-(c) (2018)). The Supreme Court declared the
`Act unconstitutional, but there is no opinion of the Court that sets forth a guiding
`rationale.
`
`A plurality concluded that false speech is not in a general category that is
`presumptively unprotected. The plurality explained that where false claims are made
`knowingly or recklessly “to effect a fraud or secure moneys or other valuable
`considerations, say, offers of employment,” then it is well established that the
`government may restrict speech without violating the First Amendment. Alvarez, 567
`U.S. at 723. Citing prior decisions, the plurality also acknowledged that false speech
`is not protected in certain cases involving “defamation, fraud, or some other legally
`cognizable harm associated with a false statement, such as an invasion of privacy or
`
`-4-
`
`

`

`the costs of vexatious litigation.” Id. at 719. But the plurality concluded that the
`Stolen Valor Act targeted “falsity and nothing more,” and that it was subject to
`“exacting scrutiny” as a content-based restriction on speech. Id. at 715, 719.
`Applying what has also been described as “strict scrutiny,” see Williams-Yulee v. Fla.
`Bar, 575 U.S. 433, 442-43 (2015), the plurality determined that the government failed
`to show that the Act’s restriction on false speech was “actually necessary” to achieve
`a compelling interest, or that the restriction was the “least restrictive means among
`available, effective alternatives.” Alvarez, 567 U.S. at 726, 729 (internal quotation
`omitted). Accordingly, the Stolen Valor Act “infringe[d] upon speech protected by
`the First Amendment.” Id. at 730.
`
`An opinion concurring in the judgment concluded that the Stolen Valor Act
`violated the First Amendment for a different reason. Applying “intermediate
`scrutiny” to a law that proscribed false statements about “easily verifiable facts,” the
`concurrence determined that the breadth of the prohibition created a significant risk
`of First Amendment harm, and that it was possible substantially to achieve the
`government’s objectives in less burdensome ways. Id. at 732, 736-38 (Breyer, J.,
`concurring in the judgment). Because the government did not convincingly explain
`why a more finely tailored statute would not work, the Act violated the First
`Amendment. Id. at 739.
`
`When the Supreme Court is splintered, we attempt to apply the rule of Marks
`v. United States, 430 U.S. 188 (1977), to determine the controlling rule. But where
`a concurring opinion is not a logical subset of the plurality’s rationale, or vice-versa,
`it is not possible to discern a holding in the case. United States v. Bailey, 571 F.3d
`791, 798 (8th Cir. 2009); King v. Palmer, 950 F.2d 771, 781-82 (D.C. Cir. 1991) (en
`banc). That is the situation here. The Alvarez concurrence is arguably narrower than
`the plurality opinion because it applied intermediate scrutiny rather than exacting
`scrutiny. Yet the concurrence suggested more broadly that all false factual statements
`receive some protection under the First Amendment, while the plurality indicated that
`
`-5-
`
`

`

`certain false speech is outside the First Amendment. Without a single rationale from
`Alvarez that can be identified as a holding in the case, the only binding aspect of the
`decision is its specific result. See Anker Energy Corp. v. Consolidation Coal Co., 177
`F.3d 161, 170 (3d Cir. 1999). Nevertheless, we bear in mind the reasoning of the
`various opinions as we seek to resolve this new dispute about restrictions on false
`statements.
`
`III.
`
`We consider first the Access Provision, which provides that a person is guilty
`of agricultural production facility fraud if he “obtains access to an agricultural
`production facility by false pretenses.” Iowa Code § 717A.3A(1)(a). The State
`argues that this provision is consistent with the First Amendment because it prohibits
`exclusively lies associated with a legally cognizable harm—namely, trespass to
`private property. We agree with this conclusion.
`
`The Alvarez plurality, in surveying prior statements of the Court declaring that
`false statements have no value or constitutional protection, explained that they all
`“derive from cases discussing defamation, fraud, or some other legally cognizable
`harm associated with a false statement, such as an invasion of privacy or the costs of
`vexatious litigation.” 567 U.S. at 719. Although none of the cited examples is
`precisely on point, trespass to private property is a comparable “legally cognizable
`harm,” such that knowingly false speech designed to cause that harm should lead to
`a similar conclusion.
`
`Trespass is an ancient cause of action that is long recognized in this country.
`See United States v. Jones, 565 U.S. 400, 404-05 (2012); 3 William Blackstone,
`Commentaries *209. Trespass by misrepresentation has a similar pedigree, see De
`May v. Roberts, 9 N.W. 146, 149 (Mich. 1881), and harm flowing from trespass is
`legally cognizable. “From every unlawful entry, or every direct invasion of the
`
`-6-
`
`

`

`person or property of another, the law infers some damage.” Nichols v. City of
`Evansdale, 687 N.W.2d 562, 573 (Iowa 2004) (quoting 75 Am. Jur. 2d Trespass
`§ 117). Although falsity alone may not suffice to bring speech outside the First
`Amendment, there is no dispute that the term “false” in the Access Provision requires
`that false pretenses be assumed intentionally. Cf. State v. Hoyman, 863 N.W.2d 1, 16
`(Iowa 2015). The better rule in light of Alvarez is that intentionally false speech
`undertaken to accomplish a legally cognizable harm may be proscribed without
`violating the First Amendment.
`
`The district court concluded, however, that trespass onto private property does
`not result in a legally cognizable harm, because a property owner who suffers a
`trespass may be entitled to recover only nominal damages. The court reasoned that
`“nominal damage is just that—damage in name only.” But the court’s own citation
`to Black’s Law Dictionary acknowledged that nominal damages are “awarded when
`a legal injury is suffered but there is no substantial loss or injury to be compensated.”
`Damages, Black’s Law Dictionary (10th ed. 2014) (emphasis added). Nominal
`damages are not “purely symbolic, a mere judicial token that provides no actual
`benefit to the plaintiff.” Uzuegbunam v. Preczewski, 141 S. Ct. 792, 800-01 (2021).
`They are, rather, damages paid to a plaintiff that provide redress for an injury. Id. at
`801. Even without physical damage to property arising from a trespass, these
`damages may compensate a property owner for a diminution of privacy and a
`violation of the right to exclude—legally cognizable harms. See ALDF v. Wasden,
`878 F.3d 1184, 1205-06 (9th Cir. 2018) (Bea, J., dissenting in part and concurring in
`part); see also Cedar Point Nursery v. Hassid, No. 20-107, 2021 WL 2557070 (U.S.
`June 23, 2021) (“The right to exclude is one of the most treasured rights of property
`ownership.”) (internal quotation omitted). We therefore conclude that the Access
`Provision’s prohibition on assuming false pretenses to obtain access to an agricultural
`production facility is consistent with the First Amendment.
`
`-7-
`
`

`

`IV.
`
`The plaintiffs also challenge the Employment Provision. This subsection
`provides that a person commits an offense if he “[m]akes a false statement or
`representation as part of an application or agreement to be employed at an agricultural
`production facility,” if he “knows the statement to be false, and makes the statement
`with an intent to commit an act not authorized by the owner of the agricultural
`production facility, knowing that the act is not authorized.” Iowa Code
`§ 717A.3A(1)(b). The district court ruled this provision unconstitutional on its face
`under the First Amendment on the ground that it restricts protected speech and cannot
`satisfy either strict scrutiny or intermediate scrutiny.
`
`The State argues on appeal that the provision does not proscribe protected
`speech because the Alvarez plurality concluded that “[w]here 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.” 567 U.S. at 723 (plurality opinion) (emphasis
`added). The State maintains that the Employment Provision simply prevents making
`false statements to secure an offer of employment, so it is constitutional.
`
`We may assume for the sake of analysis that a narrowly tailored statute aimed
`at preventing false claims to secure offers of employment would pass constitutional
`muster. As the district court observed, however, the Iowa statute sweeps more
`broadly. The proscription of the Employment Provision does not require that false
`statements made as part of an employment application be material to the employment
`decision. As such, the statute is not limited to false claims that are made “to effect”
`an offer of employment; it allows for prosecution of those who make false statements
`that are not capable of influencing an offer of employment. Plausible scenarios
`abound: the applicant falsely professes to maintain a wardrobe like the interviewer’s,
`exaggerates her exercise routine, or inflates his past attendance at the hometown
`
`-8-
`
`

`

`football stadium. See generally Rachel Feintzeig, The Lies We Tell During Job
`Interviews, Wall St. J., Jan. 11, 2021, at A11; Nicolas Roulin, The Psychology of Job
`Interviews 86-104 (2017). The plaintiffs assert that their investigators would make
`misrepresentations that include omitting their affiliation with the Animal Legal
`Defense Fund, omitting their status as licensed private investigators, downplaying
`their educational backgrounds, and “telling innocuous white lies to ingratiate
`themselves to their interviewers, such as ‘I like your tie (or local sports team or
`company philosophy).’” R. Doc. 55-1, at 4 ¶ 13.
`
`Given the breadth of the Employment Provision, it proscribes speech that is
`protected by the First Amendment and does not satisfy strict scrutiny. Insofar as the
`State has a compelling interest in preventing false statements made to effect offers of
`employment, a prohibition on immaterial falsehoods is not actually necessary to
`achieve the interest. There is a less restrictive means available: proscribe only false
`statements that are material to a hiring decision. See Wasden, 878 F.3d at 1201-02.
`If intermediate scrutiny were the standard, the absence of a materiality requirement
`distinguishes the Iowa statute from permissible prohibitions on fraud, perjury, and
`lying to government officials. Alvarez, 567 U.S. at 734-36 (Breyer, J., concurring in
`the judgment). While it is true that § 717A.3A(1)(b) requires proof of other elements,
`including intent to commit an unauthorized act in the agricultural facility, the fact
`remains that some persons may be prosecuted only because they make an immaterial
`false statement. Under either approach in the Alvarez majority, the scope of the
`Employment Provision is too broad to satisfy the First Amendment. See also
`McCullen v. Coakley, 573 U.S. 464, 496 & n.9 (2014); Brown v. Ent. Merchs. Ass’n,
`564 U.S. 786, 804 (2011).
`
`The State’s principal response on materiality is that the phrase “false pretenses”
`requires proof of a material misrepresentation under Iowa law. See Wilson v. Vanden
`Berg, 687 N.W.2d 575, 584 (Iowa 2004). That reply is no help with respect to the
`Employment Provision, which proscribes making a “false statement” without such a
`
`-9-
`
`

`

`limitation. See Iowa Code § 717A.3A(1)(b). A narrowing construction of the
`Employment Provision to require proof of a material misrepresentation is not possible
`because the statute is not “readily susceptible” to the limitation. Virginia v. Am.
`Booksellers Ass’n, Inc., 484 U.S. 383, 397 (1988). This federal court cannot rewrite
`the Iowa Code to impute a limitation that the legislature declined to include.
`
`* * *
`
`For these reasons, we affirm the district court’s grant of summary judgment for
`the plaintiffs on Iowa Code § 717A.3A(1)(b), reverse the judgment declaring
`unconstitutional § 717A.3A(1)(a), vacate the injunction against enforcement of
`§ 717A.3A(1)(a), (2), and (3), and remand for further proceedings.
`
`GRASZ, Circuit Judge, concurring.
`
`This case tests the outer boundaries of protection of speech under the First
`Amendment. It concerns the concept of “truth” and the constitutionality of the
`government punishing, through criminal sanctions, the use of false speech in order
`to obtain access to, or employment at, certain private facilities.
`
`This nation was founded on the concept of objective truth (“We hold these
`truths to be self-evident . . . .”). And some of our nation's oldest institutions were
`founded as instrumentalities of the search for truth (Veritas). The quest for truth has
`not, of course, ended; nor has the clash between the free flow of ideas and the desire
`to punish untruthful speech that is perceived as harmful. The law has long provided
`for legal consequences for false speech constituting fraud, perjury, and defamation.
`The present case, however, presents a new category of deceit which the State of Iowa
`seeks to penalize. Some see it as investigative journalism. Others see it as lying to
`further an agenda at the expense of private property rights. In either sense, its
`punishment presents a legal dilemma between protecting property and protecting
`
`-10-
`
`

`

`speech. While some have always questioned whether truth can be known (“What is
`truth?”), our task is not to answer that question but simply to determine whether the
`constitution allows the government to criminally punish falsity in the specific context
`of the statute before us.
`
`I join the court's opinion in full because I believe it is consistent with current
`law, as best we can determine it from limited and sometimes hazy precedent. Still,
`I do so hesitantly as to the Access Provision. The court's opinion today represents the
`first time any circuit court has upheld such a provision. At a time in history when a
`cloud of censorship appears to be descending, along with palpable public fear of
`being “cancelled” for holding “incorrect” views, it concerns me to see a new category
`of speech which the government can punish through criminal prosecution.
`Ultimately, the Supreme Court will have to determine whether such laws can be
`sustained, or whether they infringe on the “breathing room” necessary to effectuate
`the promise of the First Amendment.
`
`Going forward, a key question will be whether access-by-deceit statutes will
`be applied to punish speech that has instrumental value or which is tied to political
`or ideological messages. The Alvarez decision, for the reasons noted in the court's
`opinion, is of limited guidance here. However, I find it significant that even the
`dissent in that case, while finding no value in the false speech there (lying about
`receiving high military honors), nonetheless recognized the principle that false speech
`which does have intrinsic or instrumental value may fall within the ambit of the Free
`Speech Clause. See United States v. Alvarez, 567 U.S. 709, 752 (2012) (Alito, J.,
`dissenting). Most notably, the dissenting opinion states, “The false statements
`proscribed by the [Stolen Valor] Act are highly unlikely to be tied to any particular
`political or ideological message.” Id. at 740–41. Whether that conclusion also holds
`true in the application of this or future access-by-deceit provisions remains to be seen.
`
`-11-
`
`

`

`GRUENDER, Circuit Judge, concurring in part and dissenting in part.
`
`I join in Section III of the court’s opinion holding that the Access Provision
`does not violate the First Amendment. However, I disagree with the court’s Marks
`analysis and with its holding that the Employment Provision violates the First
`Amendment. I write separately to explain these disagreements and to offer additional
`support for the conclusion that the Access Provision is constitutional.
`
`I.
`
`I begin by addressing the Marks analysis. As the court notes, ante, at 4-5, the
`Supreme Court held in United States v. Alvarez that the Stolen Valor Act was
`unconstitutional, but no majority of justices agreed on the rationale. See 567 U.S.
`709, 714-16 (2012) (plurality opinion); id. at 730 (Breyer, J., concurring in the
`judgment). Under Marks v. United States, “[w]hen a fragmented Court decides a case
`and no single rationale explaining the result enjoys the assent of five Justices,” “the
`holding of the Court may be viewed as that position taken by those Members who
`concurred in the judgments on the narrowest grounds.” 430 U.S. 188, 193 (1977).
`
`Where two opinions reach the same conclusion on different legal grounds, one
`is narrower than the other for Marks purposes if the former is a logical subset of the
`latter; that is, if the legal rule of decision in the latter entails the legal rule of decision
`in the former. See United States v. Bailey, 571 F.3d 791, 798 (8th Cir. 2009).
`However, the Marks rule “becomes problematic when one opinion supporting the
`judgment does not fit entirely within a broader circle drawn by the others.” Id.
`(internal quotation marks omitted); see also King v. Palmer, 950 F.2d 771, 781 (D.C.
`Cir. 1991) (en banc) (“Marks is workable—one opinion can be meaningfully regarded
`as ‘narrower’ than another—only when one opinion is a logical subset of [the
`other].”).
`
`-12-
`
`

`

`I agree with the court that, in Alvarez, neither the plurality nor the concurrence
`is a logical subset of the other. See ante, at 5. But unlike the court, I would not hold
`that this means that it is impossible to discern which is narrower and conclude that
`“the only binding aspect of the decision is its specific result.” See ante, at 5-6. This
`approach may have support in the law of other circuits, see, e.g., Lair v. Bullock, 697
`F.3d 1200, 1205 (9th Cir. 2012); United States v. Alcan Aluminum Corp., 315 F.3d
`179, 189 (2d Cir. 2003); Anker Energy Corp. v. Consol. Coal Co., 177 F.3d 161, 170
`(3d Cir. 1999), but it is not the approach of our circuit. The court cites Bailey, ante,
`at 5, but Bailey stated that it is “difficult”—not impossible—“to determine which
`holding is the narrowest” when neither opinion is a logical subset of the other, 571
`F.3d at 798. Historically, we have employed at least one other method for
`determining the narrowest opinion when the logical-subset test yields none. When
`a fractured Supreme Court sustains a constitutional challenge, we have followed the
`opinion that “would hold the fewest statutes unconstitutional.” Coe v. Melahn, 958
`F.2d 223, 225 (8th Cir. 1992). And even when we have determined that there is no
`narrowest opinion, we have not concluded that the only binding aspect of the decision
`is the judgment. Rather, looking to the reasoning in the various opinions, we have
`attempted to resolve the issue before us in the way that would have commanded the
`votes of any five justices of the Court, including any dissenters. See Bailey, 571 F.3d
`at 799 (citing United States v. Johnson, 467 F.3d 56, 66 (1st Cir. 2006)) (determining
`that there was jurisdiction under Rapanos v. United States, 547 U.S. 715 (2006),
`because the one-justice concurrence in the judgment and the four-justice dissent
`would both find jurisdiction).1
`
`Here, it is not clear which of the two Alvarez opinions would hold the least
`number of statutes unconstitutional. One could argue that the plurality’s approach
`
`1Also, in Hopkins v. Jegley, we both identified a “controlling” opinion even
`though no opinion was a logical subset of another and noted that five justices,
`including four in the dissent, would have applied the controlling opinion’s rule to the
`case before us. See 968 F.3d 912, 915 (8th Cir. 2020) (per curiam).
`
`-13-
`
`

`

`would hold fewer statutes unconstitutional because it would not subject statutes that
`prohibit lies associated with a “legally cognizable harm” or told for the “purpose of
`material gain” to First Amendment scrutiny at all. See Alvarez, 567 U.S. at 719, 723
`(plurality opinion). The concurrence would subject these statutes to at least
`intermediate scrutiny. See id. at 730-31, 734-36 (Breyer, J., concurring in the
`judgment) (highlighting the “limiting features” of regulations of fraud, perjury, false
`claims, impersonation, and trademark infringement that enable them to hold up better
`under intermediate scrutiny than the Stolen Valor Act). However, one also could
`argue that the plurality would hold more statutes unconstitutional because it would
`apply strict scrutiny to laws, like the Stolen Valor Act, to which the concurrence
`would apply only intermediate scrutiny.
`
`Given that neither the logical-subset test nor the test from Coe determines a
`narrowest opinion, I believe that our Marks jurisprudence leaves open two ways of
`proceeding. The first is to look to other circuits for additional methods of
`determining a narrowest opinion for Marks purposes. For instance, the Sixth Circuit
`has characterized the “narrowest opinion” as the “opinion that offers the least change
`to the law.” United States v. Cundiff, 555 F.3d 200, 209 (6th Cir. 2009) (internal
`quotation marks omitted); cf. Marks, 430 U.S. at 193-94 (treating as controlling the
`opinion that proposed the least change to the government’s ability to regulate
`obscenity under the First Amendment). The second is to resort to Bailey’s fallback
`approach that we use when Marks is inconclusive—resolving this case in the way that
`would have commanded the votes of five justices on the Alvarez Court. Here, both
`approaches lead to the same outcome.
`
`Consider first the approach of following the “opinion that offers the least
`change to the law.” See id. (internal quotation marks omitted). In Alvarez, that
`opinion is the plurality. The concurrence deviated from longstanding Supreme Court
`precedent by subjecting the content-based Stolen Valor Act to intermediate rather
`than strict scrutiny. Compare Alvarez, 567 U.S. at 731-32 (Breyer, J., concurring in
`
`-14-
`
`

`

`the judgment) (applying intermediate scrutiny to a content-based law), with Brown
`v. Entm’t Merchs. Ass’n, 564 U.S. 786, 799 (2011) (applying strict scrutiny to a
`content-based law); United States v. Playboy Entm’t Grp., 529 U.S. 803, 813 (2000)
`(same); Burson v. Freeman, 504 U.S. 191, 198-99 (1992) (same). The fact that the
`Supreme Court has continued, since Alvarez, to apply strict scrutiny to content-based
`regulations of speech and to decline invitations to relax this practice confirms how
`firmly entrenched this practice is in its caselaw. See, e.g., Barr v. Am. Ass’n of Pol.
`Consultants, Inc., 591 U.S. ---, 140 S. Ct. 2335, 2358 (2020) (Breyer, J., concurring
`in the judgment in part and dissenting in part) (criticizing the Court for “reflexively
`appl[ying] strict scrutiny to all content-based speech distinctions”); Reed v. Town of
`Gilbert, 576 U.S. 155, 176 (2015) (Breyer, J., concurring in the judgment) (parting
`ways with the majority on the basis that “the category ‘content discrimination’ is
`better considered . . . as a rule of thumb, rather than as an automatic ‘strict scrutiny’
`trigger”). Therefore, the Alvarez concurrence proposed a more radical change to the
`law than the Alvarez plurality. And, for the reasons I explain in Sections II-III, the
`Alvarez plurality’s reasoning requires upholding both the Access Provision and the
`Employment Provision. Thus, if we were to follow the “opinion that offers the least
`change to the law,” Cundiff, 555 F.3d at 209, then we would be required to uphold
`both the Access Provision and the Employment Provision.
`
`Now, consider the fallback approach of resolving this case in the way that
`would have commanded the votes of five justices on the Alvarez Court. According
`to the Alvarez dissent, a statute that criminalizes “only knowingly false statements
`about hard facts directly within a speaker’s personal knowledge” “presents no threat
`to the freedom of speech.” 567 U.S. at 739 (Alito, J., dissenting). Both the Access
`Provision and the Employment Provision criminalize “only knowingly false
`statements about hard facts directly within [the] speaker’s personal knowledge.” See
`id.; Iowa Code § 717A.3A(1)(a)-(b). Presumably, then, the three dissenters in
`Alvarez would have voted to uphold both the Access Provision and the Employment
`Provision in this case. And, again, for the reasons I explain in Sections II-III, the
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`Alvarez plurality’s reasoning requires upholding both the Access Provision and the
`Employment Provision. So presumably the four justices in the plurality would also
`have voted to uphold both the Access Provision and the Employment Provision in this
`case. Thus, to resolve the case in the way that would have commanded the votes of
`five justices on the Alvarez Court, we would be required to uphold both the Access
`Provision and the Employment Provision.
`
`In sum, our jurisprudence leaves open two approaches to resolving the difficult
`Marks problem that this case presents. But if I am right about how the Alvarez
`plurality’s reasoning applies in this case, then the two approaches converge on the
`same result: we must uphold both the Access Provision and the Employment
`Provision. I devote the remainder of my opinion to explaining my view that the
`Alvarez plurality’s reasoning implies that both the Access Provision and the
`Employment Provision are constitutional.
`
`II.
`
`I begin with the Access Provision. The court concludes that the Access
`Provision does not violate the First Amendment under the Alvarez plurality’s
`reasoning because trespass is a “legally cognizable harm.” See ante, at 6-7; Alvarez,
`567 U.S. at 719 (plurality opinion) (indicating that lies associated with a legally
`cognizable harm fall outside First Amendment protection). I agree. I write separately
`here to provide additional support for this conclusion.
`
`A “legally cognizable harm,” as the Supreme Court uses the phrase, is simply
`an injury that supports standing to pursue a cause of action. See, e.g., Lujan v.
`Defenders of Wildlife, 504 U.S. 555, 578 (1992) (using the phrase “legally cognizable
`injury” to refer to an injury that supports standing); Ariz. Christian Sch. Tuition Org.
`v. Winn, 563 U.S. 125, 162 (2011) (Kagan, J., dissenting) (using the phrase “legally
`cognizable harm” to refer to an injury that supports standing). An injury that supports
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`standing under the law of one sovereign may not support standing under the law of
`another sovereign. See Zicherman v. Korean Air Lines Co., 516 U.S. 217, 222-23
`(1996) (noting differences between France and other nations regarding “what
`constitutes legally cognizable harm”). In addition, an injury that supports standing
`under the law of one sovereign at one time may not support standing under the law
`of that same sovereign at a different time. See Spokeo, Inc. v. Robins, 578 U.S. ---,
`136 S. Ct. 1540, 1549 (2016) (explaining that “Congres