From today's opinion in Animal Legal Defense Fund v. Reynolds by Judge Grasz, joined by Judges Colloton and Kobes:
Iowa enacted a trespass-surveillance law penalizing anyone who, while trespassing, "knowingly places or uses a camera or electronic surveillance device that transmits or records images or data while the device is on the trespassed property[.]" …
The Act applies only when there has first been a "trespass" as defined in Iowa Code § 716.7(2). When a general trespass does not involve injury to a person or property damage over $300, Iowa punishes the offense as a "simple misdemeanor," with a fine between $105 and $855 and up to thirty days of imprisonment. The Act, however, punishes a first offense of trespass-surveillance as an "aggravated misdemeanor," with a fine between $855 and $8,540 and up to two years of imprisonment. The State argues these steeper penalties are, in part, meant to deter would-be trespassers from placing or using recording devices, in addition to protecting the privacy interests of Iowans on their private property….
Because freedom of speech includes expression through the making and sharing of videos, we assume without deciding that the use of a camera while trespassing implicates the First Amendment as protected activity. We must then review the statute by applying the appropriate level of scrutiny. As the district court correctly assumed, Plaintiffs' facial challenge to the Act should be reviewed under intermediate scrutiny because the Act represents a content-neutral time, place, and manner restriction.
