869 F.3d 1189
10th Cir.2017Background
- Wyoming enacted statutes (2016) making it a crime and civil tort to: (1) enter private land to collect "resource data," (2) enter private land and collect resource data, or (3) cross private land to access adjacent/proximate land where one collects resource data. The definitions reach many activities on public land when location is recorded (e.g., photos, notes, samples with GPS).
- The 2016 statutes increased penalties compared to general trespass law (longer max. jail, fines, civil fee-shifting) and removed a mens rea requirement present in the general trespass statute.
- Plaintiffs (environmental and press organizations) sued, alleging violations of the First Amendment (free speech/petition) and equal protection; district court initially found some claims plausible under the 2015 statutes, then after revision dismissed the amended complaint as to the 2016 subsections (c).
- The appeal focuses solely on whether subsections (c) of the 2016 statutes regulate activity protected by the First Amendment (i.e., collection/creation of information on public land accessed by crossing private land).
- The Tenth Circuit held that the statutes, as drafted and defined, regulate the creation of information (photographs, notes, geo-tagged data, samples tied to recorded location) and therefore implicate the First Amendment; it reversed and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether subsections (c) regulate First Amendment‑protected activity | Collecting resource data (photographs, notes, samples with location) is creation of speech and protected | The statutes merely enforce trespass; plaintiffs effectively claim a right to trespass and have no First Amendment right on private property | Held: The statutes regulate creation of speech (protected). Subsections (c) can reach activity on public land and thus trigger First Amendment scrutiny |
| Whether the private‑property focus defeats First Amendment analysis | Plaintiffs do not seek a right to enter private property; they challenge differential penalties for creating speech after crossing private land to reach public land | Defendants rely on Hudson/Lloyd line denying free‑speech rights to speak on private property | Held: Private property aspect does not avoid scrutiny; Court cites Watchtower and distinguishes Hudgens/Lloyd because subsections (c) regulate speech creation on public land |
| Whether collection of samples (nonverbal conduct) is unprotected conduct | Even samples qualify when coupled with recorded location because it is part of creating information for public advocacy/petitioning | Defendants assert samples are conduct, not speech, and thus outside First Amendment protection | Held: Recording location together with samples places the act within speech-creation protected by the First Amendment |
| Whether this is like Zemel (no First Amendment right to gather information) | Plaintiffs: statutes specifically target speech-creation and thus differ from generally applicable restrictions on movement | Defendants: analogize to Zemel/Public‑travel restrictions that incidentally limit information flow | Held: Zemel not controlling; these statutes operate at the "front end" of speech creation and are subject to First Amendment review |
Key Cases Cited
- Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) (protects creation and dissemination of information; laws may target speech production)
- Hudgens v. NLRB, 424 U.S. 507 (1976) (no First Amendment right to engage in speech on private property)
- Lloyd Corp., Ltd. v. Tanner, 407 U.S. 551 (1972) (private property owner can exclude speech that would otherwise occur on private property)
- Watchtower Bible & Tract Soc’y v. Vill. of Stratton, 536 U.S. 150 (2002) (ordinance restricting door‑to‑door advocacy required permit; First Amendment applies even where private property access is regulated)
- Brown v. Entertain. Merchants Ass’n, 564 U.S. 786 (2011) (First Amendment protects creation/distribution of speech; regulation at creation stage is reviewable)
- Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010) (laws controlling or suppressing speech may operate at different points in the speech process)
- Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105 (1991) (laws that create disincentives to create or publish works trigger First Amendment scrutiny)
- Zemel v. Rusk, 381 U.S. 1 (1965) (right to speak/publish does not guarantee an unqualified right to gather information; restrictions on movement that incidentally reduce information flow may be permissible)
- Minneapolis Star & Tribune Co. v. Minn. Com’r of Revenue, 460 U.S. 575 (1983) (government regulations aimed at proper concerns can still unduly restrict First Amendment rights)