From today's opinion in Animal Legal Defense Fund v. Reynolds, by Judge Colloton, joined by Judges Grasz and Kobes:
In Animal Legal Defense Fund v. Reynolds (8th Cir. 2021) ("ALDF I"), this court considered an Iowa law that prohibited (1) accessing an agricultural production facility by false pretenses and (2) making a false statement or misrepresentation as part of an application for employment at such a facility. We concluded that the prohibition on accessing a facility by false pretenses did not violate the free speech clause of the First Amendment. But we ruled that the prohibition on making false statements in an employment application was insufficiently tailored and unconstitutional, because it encompassed statements that were not material to an employment decision.
A new Iowa law solves the materiality problem in the employment provision by forbidding the use of deception "on a matter that would reasonably result in a denial of an opportunity to be employed." The statute also narrows the scope of both prohibitions by adding an intent element: the law forbids the use of deceptive speech only when the person gains access or employment "with the intent to cause physical or economic harm or other injury" to the agricultural production facility. After several organizations challenged the new law, the district court concluded that the intent requirement renders the law "viewpoint-based" and unconstitutional under the First Amendment. We respectfully disagree, and therefore reverse….
The challenged statute includes two provisions—an "Access Provision" and an "Employment Provision." Both regulate false or deceptive speech. This type of speech is not per se unprotected, but the State may proscribe "intentionally false speech undertaken to accomplish a legally cognizable harm." ALDF I.
The Access Provision and the Employment Provision do just that. The Access Provision proscribes false speech used to commit a trespass. The harm flowing from trespass is legally cognizable. The Employment Provision proscribes gaining employment through false speech on matters that are material to hiring. As the plurality in Alvarez explained, where false claims are made to secure offers of employment, "it is well established that the Government may restrict speech without affronting the First Amendment."
