ANIMAL LEGAL DEFENSE FUND; People for the Ethical Treatment of Animals Inc.; American Civil Liberties Union of Idaho; Center for Food Safety; Farm Sanctuary; River‘s Wish Animal Sanctuary; Western Watersheds Project; Sandpoint Vegetarians; Idaho Concerned Area Residents for the Environment; Idaho Hispanic Caucus Institute for Research and Education; Counterpunch; Farm Forward; Will Potter; James McWilliams; Monte Hickman; Blair Koch; Daniel Hauff, Plaintiffs-Appellees, v. Lawrence G. WASDEN, in His Official Capacity as Attorney General of Idaho, Defendant-Appellant.
No. 15-35960
United States Court of Appeals, Ninth Circuit.
January 4, 2018
878 F.3d 1184
C.
Calderon also argues that his waiver of counsel was not knowing and voluntary. Whether Calderon was competent may well affect that inquiry. We therefore do not address the waiver of counsel argument at this juncture.
Calderon also makes an equal protection argument concerning the impact of his alcoholism on the grounds for denying relief from removal. His argument relies on Ledezma-Cosino v. Lynch, 819 F.3d 1070 (9th Cir. 2016), a decision overruled by Ledezma-Cosino v. Sessions, 857 F.3d 1042 (9th Cir. 2017) (en banc). The equal protection argument therefore fails.
III.
The petition is GRANTED. The case is REMANDED to the Board of Immigration Appeals with instructions to remand Calderon‘s case to the Immigration Judge for a competence evaluation based on current mental health reviews and medical records, as well as any other relevant evidence.
Justin F. Marceau (argued), Of Counsel, Animal Legal Defense Fund, Denver, Colorado; Matthew Liebman, Animal Legal Defense Fund, Cotati, California; Alan K. Chen, University of Denver, Sturm College of Law, Denver, Colorado; Matthew Strugar, PETA Foundation, Los Angeles, California; Leslie A. Brueckner, Oakland, California; Paige M. Tomaselli and Cristina R. Stella, Center for Food Safety, San Francisco, California; Richard Alan Eppink, American Civil Liberties Union of Idaho Foundation, Boise, Idaho; Maria Andrade, Boise, Idaho; for Plaintiffs-Appellees.
James J. Pizzirusso and Sarah R. LaFreniere, Hausfeld, Washington, D.C., for Amicus Curiae Plant Based Foods Association.
Marty Durand and James Piotrowski, Herzfeld & Piotrowski PLLC, Boise, Idaho, for Amici Curiae Idaho Building Trades Council and Idaho AFL-CIO.
Sarah L. Nash, Government Accountability Project Food Integrity Campaign, Washington, D.C.; Craig H. Durham, Ferguson Durham PLLC, Boise, Idaho; for Amicus Curiae Government Accountability Project.
R. Bruce Rich and Jonathan Bloom, Weil Gotshal & Manges LLP, New York, New York, for Amici Curiae Association of American Publishers, American Booksellers for Free Expression, Authors Guild Inc., Freedom to Read Foundation, and Media Coalition Foundation.
David A. Schulz, Media Freedom & Information Access Clinic, New York, New York; Jonathan M. Manes, New Haven, Connecticut; for Amici Curiae Abrams Institute for Freedom of Expression and Scholars of First Amendment and Information Law.
Bruce D. Brown, Gregg P. Leslie, and Michael J. Lambert, Reporters Committee for Freedom of the Press, Washington, D.C., for Amici Curiae Reporters Committee for Freedom of the Press and 22 Media Organizations.
Deepak Gupta, Gupta Wessler PLLC, Washington, D.C., for Amicus Curiae Erwin Chemerinsky.
Andrew P. Bridges, Alexis I. Caloza, and Kathleen Lu, Fenwick & West LLP, San Francisco, California, for Amicus Curiae United Farm Workers of America. Geoffrey J. McConnell, McConnell Wagner Sykes & Stacey PLLC, Boise, Idaho, for Amicus Curiae Susannah W. Pollvogt, Scholar of the Law of Unconstitutional Animus.
Shayana Kadidal, Center for Constitutional Rights, New York, New York, for Amici Curiae Professors Brooke Kroeger and Ted Conover.
Mahesha P. Subbaraman, Subbaraman PLLC, Minneapolis, Minnesota, for Amici Curiae Food Law & Policy Scholars.
Before: M. MARGARET MCKEOWN, RICHARD C. TALLMAN, and CARLOS T. BEA, Circuit Judges.
Partial Concurrence and Partial Dissent by Judge Bea
OPINION
McKEOWN, Circuit Judge:
Investigative journalism has long been a fixture in the American press, particularly with regard to food safety.1 In the early 1900s, Upton Sinclair highlighted conditions in the meat-packing industry in The Jungle, a novel based on his time working incognito in a packing plant.2 This case also originates in the agricultural sector—a secretly-filmed exposé of the operation of an Idaho dairy farm. By all accounts, the video was disturbing: dairy workers were shown dragging a cow across the ground by a chain attached to her neck; twisting cows’ tails to inflict excruciating pain; and repeatedly beating, kicking, and jumping on cows to force them to move.3
After the film went live on the Internet, both the court of public opinion and the Idaho legislature responded, with the latter eventually enacting the Interference with Agricultural Production law.
This appeal highlights the tension between journalists’ claimed First Amendment right to engage in undercover investigations and the state‘s effort to protect privacy and property rights in the agricultural industry. Idaho challenges the district court‘s determination that four subsections of the statute—
Our analysis is framed by the Supreme Court‘s decision in United States v. Alvarez, 567 U.S. 709, 132 S.Ct. 2537, 183 L.Ed.2d 574 (2012), which addressed the First Amendment and false speech. We conclude that Idaho‘s criminalization of misrepresentations to enter a production facility,
We are sensitive to journalists’ constitutional right to investigate and publish exposés on the agricultural industry. Matters related to food safety and animal cruelty are of significant public importance. However, the First Amendment right to gather news within legal bounds does not exempt journalists from laws of general applicability. For this reason, we uphold the provisions that fall within constitutional parameters, but strike down those limitations that impinge on protected speech.
Background
The Investigation
In 2012, an animal rights activist went undercover to get a job at an Idaho dairy farm and then secretly filmed ongoing animal abuse there. Mercy for Animals, an animal rights group, publicly released portions of the video, drawing national attention. The dairy farm owner responded to the video by firing the abusive employees who were caught on camera, instituting operational protocols, and conducting an animal welfare audit at the farm. Local law enforcement authorities launched an investigation that culminated in the conviction of one of the employees for animal cruelty. After the video‘s release, the dairy farm owner and his family received multiple threats.
Idaho‘s Interference with Agricultural Production Statute
In February 2014, Idaho enacted a law criminalizing “interference with agricultural production” to protect Idaho farmers. See
(a) Is not employed by an agricultural production facility and enters an agricultural production facility by force, threat, misrepresentation or trespass;
(b) Obtains records of an agricultural production facility by force, threat, misrepresentation or trespass;
(c) Obtains employment with an agricultural facility by force, threat, or misrepresentation with the intent to cause economic or other injury to the facility‘s operations, livestock, crops, owners, personnel, equipment, buildings, premises, business interests or customers; [or]
(d) Enters an agricultural production facility that is not open to the public and, without the facility owner‘s express consent or pursuant to judicial process or statutory authorization, makes audio or video recordings of the conduct of an agricultural production facility‘s operations[.]5
For purposes of this statute, the term “agricultural production” broadly covers “activities associated with the production of agricultural products for food, fiber, fuel and other lawful uses,” and other activities such as “[p]reparing land for agricultural production” and “[h]andling or applying pesticides . . . .”6 Id.
Interference with agricultural production is a misdemeanor punishable by up to one year in prison or a fine not in excess of $5,000, or both. Id.
The legislative history reveals a complex series of motivations behind the statute. The bill was drafted by the Idaho Dairymen‘s Association, a trade organization representing Idaho‘s dairy industry. When the Association‘s lawyer addressed legislators, he stated that one goal of the bill was “to protect Idaho farmers from wrongful interference. . . . Idaho farmers live and work spread out across the land where they‘re uniquely vulnerable to interference by wrongful conduct.” Another goal was to shield the agricultural industry from undercover investigators who expose the industry to the “court of public opinion,”
At the time of the passage of this legislation, Idaho already had a law relating to interference with agricultural research—which has not been challenged—prohibiting knowingly damaging or obtaining property at an agricultural research facility with intent to hinder agricultural research; obtaining access to an agricultural research facility by misrepresentation with the intent to perform acts that would hinder agricultural research; entering an agricultural research facility with the intent to damage, alter, duplicate or obtain unauthorized possession of records or property related to the agricultural research; obtaining control over records or property of an agricultural research facility with intent to destroy such property without authorization of the facility; and releasing, stealing, or causing death or injury to an animal at an agricultural research facility.
Legislators discussed the bill as protecting against two types of perceived harm to agricultural producers. First, lawmakers expressed concern about physical and operational damage caused by animal rights activists who gain access to agricultural production facilities. For example, some legislators discussed concerns about farm security and privacy. Others voiced concerns about the intentional destruction of crops, breeding records, and farm structures.
Lawmakers also discussed damage caused by investigative reporting: “One of the things that bothers me a lot about the undercover investigation [at the dairy], and the fact that there‘s videos, well, we‘re being tried and persecuted and prosecuted in the press.” Other legislators used similar language demonstrating hostility toward the release of these videos, and one supporter of the legislation dubbed animal rights groups as “terrorists” who “use media and sensationalism to attempt to steal the integrity of the producer and their reputation.” One legislator stated that the dairy industry‘s reason behind the legislation was “[t]hey could not allow fellow members of the industry to be persecuted in the court of public opinion.” Another described these videos as used to “publicly crucify a company” and “as a blackmail tool.” Finally, one legislator indicated that if the video had not been published, she did not “think this bill would ever have surfaced.”
Procedural Background
In March 2014, ALDF filed suit against Lawrence G. Wasden as Attorney General of Idaho.7 The complaint alleges that the purpose and effect of the statute “are to stifle political debate about modern agriculture by (1) criminalizing all employment-based undercover investigations; and (2) criminalizing investigative journalism, whistleblowing by employees, or other expository efforts that entail images or sounds.” ALDF asserts violations of the First and Fourteenth Amendments. Although ALDF claimed preemption under the False Claims Act, Food Safety Modernization Act, and Clean Water Act, ALDF did not address those issues on appeal.
The district court granted ALDF‘s motion for summary judgment on its First Amendment and Equal Protection claims. The district court concluded that the prohibitions on misrepresentations in
The district court also determined that all four challenged subsections violate the Fourteenth Amendment‘s Equal Protection Clause and fail rational basis review. The subsections fail on their face because they classify between whistleblowers in the agricultural industry and whistleblowers in other industries. The subsections also fail through their purpose because they were “animated by an improper animus toward animal welfare groups and other undercover investigators in the agricultural industry” and “further[] no other legitimate or rational purpose.” The court noted that there was “abundant evidence that the law was enacted with the discriminatory purpose of silencing animal rights activists who conduct undercover investigations in the agricultural industry.”
The district court deemed moot ALDF‘s remaining claims and permanently enjoined enforcement of the challenged subsections. Idaho appeals the district court‘s grant of summary judgment, which we review de novo. Roberts v. Continental Ins. Co., 770 F.2d 853, 855 (9th Cir. 1985).
Analysis
I. The Misrepresentation Clauses: Idaho Code § 18-7042(1)(a)-(c)
Subsections (a), (b) and (c) criminalize misrepresentations used to gain entry to agricultural production facilities, obtain records, and, under certain circumstances, secure employment. Relevant here, a person commits the crime of interference with agricultural production if the person knowingly:
(a) Is not employed by an agricultural production facility and enters an agricultural production facility by force, threat, misrepresentation or trespass;
(b) Obtains records of an agricultural production facility by force, threat, misrepresentation or trespass; [or]
(c) Obtains employment with an agricultural facility by force, threat, or misrepresentation with the intent to cause economic or other injury to the facility‘s operations, livestock, crops, owners, personnel, equipment, buildings, premises, business interests or customers[.]
Idaho argues that the “misrepresentation” component of these provisions regulates conduct induced by false statements of fact. ALDF counters that the subsections regulate pure speech, effectively prohibiting investigative reporters from accessing agricultural production facilities and therefore blocking reporters’ access to material for journalistic exposés.
The First Amendment, applied to states through the Fourteenth Amendment, prohibits laws “abridging the freedom of speech.”
In Alvarez, the Supreme Court examined the Stolen Valor Act,
However, neither the plurality nor the concurrence in Alvarez held that false statements are always protected under the First Amendment. Instead, as the plurality outlines, false speech may be criminalized if made “for the purpose of material gain” or “material advantage,” or if such speech inflicts a “legally cognizable harm.” Id. at 723, 719. The concurring justices agreed: statutes that criminalize falsities typically require proof of specific or tangible harm. Id. at 734-36. We thus focus our attention on misrepresentations of the type singled out by the Court—false statements made for material gain or advantage or that inflict harm.
A. Idaho Code § 18-7042(1)(a): Entry by Misrepresentation
Subsection (a) criminalizes entry into an agricultural production facility “by force, threat, misrepresentation or trespass.” Notably, ALDF challenges only the “misrepresentation” prong of this subsection.8 And, as we note below, Idaho can easily address the problematic term by simply excising “misrepresentation” from this subsection. Thus, entry by force, threat or trespass would continue to be a criminal violation.
Guided by Alvarez, we conclude that subsection (a)‘s misrepresentation provision regulates speech protected by the First Amendment. The targeted speech—a false statement made in order to access an agricultural production facility—cannot on its face be characterized as “made to effect a fraud or secure moneys or other valuable considerations.” Alvarez, 567 U.S. at 723 (plurality opinion). Nor can the misrepresentation provision be characterized as simply proscribing conduct. Like the statute in Alvarez, subsection (a) “seeks to control and suppress all false statements [related to access] in almost limitless times and settings. And it does so entirely without regard to whether the lie was made for the purpose of material gain.” Id. at 722-23.
Idaho‘s argument that “the material gain to the person telling the lie is the entry to the property,” is not supported by any authority and does not establish how entry onto the property and material gain are coextensive. Under the statute, any misrepresentation to gain entry could net a criminal prosecution. Take, for example, a teenager who wants to impress his friends by obtaining a highly sought after reservation at an exclusive pop-up restaurant that is open to the public. If he were to call the restaurant and finagle a reservation in the name of his mother, a well-known journalist, that would be a misrepresentation. If the restaurant offers up a reservation on the basis of the mother‘s notoriety, granting a “license” to enter the premises and sit at a table, the teenager would be subject to punishment of up to one year in prison, a fine not to exceed $5,000, or both.
The teenager risks this potential despite the fact that he might leave before ordering, be discovered and removed by the manager, or his friends might not be impressed at all. In those instances, he would not receive even the secondary benefits of having gained access. In fact, all our teenager would have to do is enter the restaurant and he could be arrested because he gave a false name to the maître d’ on the phone. This entry alone does not constitute a material gain, and without more, the lie is pure speech.9
Or the lunch could go off without a hitch. The restaurant is none the wiser, it gets paid for the meal, and loses nothing, but the teenager could still be subject to prosecution. Once again, the lie is pure speech.
The teenager does not necessarily even gain protection from trespass liability. Idaho‘s criminal trespass law prohibits “[e]ntering without permission of the owner or the owner‘s agent, upon the real property of another” but limits its application to property posted with “No Trespassing” signs that meet certain parameters.
Re-visiting our teenager, we have already established that he is not guilty of ordinary criminal trespass in the absence of a “No Trespassing” sign. However, as with a journalist or even a curiosity seeker who dissembles to get access to the property, under the challenged Idaho law, the teenager would be subject to criminal prosecution for nothing more than what can only be characterized as a fib. Thus, the misrepresentation provision of subsection (a) regulates protected speech while “target[ing] falsity and nothing more.” Alvarez, 567 U.S. at 719 (plurality opinion). Such regulation is subject to the “most exacting scrutiny.” Id. at 724 (quoting Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642 (1994)). Idaho‘s chosen restriction on speech must be “actually necessary” to achieve a compelling government interest, and there must be a “direct causal link between the restriction imposed and the injury to be prevented.” Id. at 725. Subsection (a) cannot survive this high bar.
Even assuming Idaho has a compelling interest in regulating property rights and protecting its farm industry, criminalizing access to property by misrepresentation is not “actually necessary” to protect those rights. If, as Idaho argues, its real concern is trespass, then Idaho already has a prohibition against trespass that does not implicate speech in any way. If instead, as a number of the legislators made clear and the dairy lobby underscored, the statute was intended to quash investigative reporting on agricultural production facilities, then the speech aspect of the statute pro-
It is troubling that criminalization of these misrepresentations opens the door to selective prosecutions—for example, pursuing the case of a journalist who produces a 60 Minutes segment about animal cruelty versus letting the misrepresentation go unchecked in the case of the teenager. As Justice Breyer aptly noted in his concurrence,
the pervasiveness of false statements, made for better or for worse motives, made thoughtlessly or deliberately, made with or without accompanying harm, provides a weapon to a government broadly empowered to prosecute falsity without more. And those who are unpopular may fear that the government will use that weapon selectively, say, by prosecuting a [politically unpopular individual who makes false claims], while ignoring members of other political groups who might make similar false claims.
Id. at 734. In this case, the targeted group—journalists and investigative reporters—could also face enhanced penalties. Violating Idaho‘s criminal trespass statute could result in up to six months in prison, a fine not in excess of $1,000, or both, see
We are also unsettled by the sheer breadth of this subsection given the definitions of “agricultural production facility” and “agricultural production.” Id.
The subsection‘s reach is particularly worrisome because many of the covered entities are, unlike large-scale dairy facilities, places of business that are open to the public. Imagine a situation in which an Albertsons grocery store opens early to the first one hundred affinity cardholders to visit the new, spectacular food court. Given the expansive definition of “agricultural production,” the Albertsons store would be covered under the statute as a facility where agricultural products are “process[ed] and package[ed] . . . into food.” An enterprising person with no Albertsons card, but representing otherwise, or, even someone using a friend‘s Albertsons card, falls prey to the statute simply because he wants to see the food-court extravaganza. Under subsection (a), our protagonist would be guilty of a misdemeanor and could be punished by up to one year in prison, a fine not in excess of $5,000, or both—not to mention a potential restitution award.
The limitation that a misrepresentation must be “knowingly” does not eliminate the threat posed by this subsection‘s stag-
Nor is this subsection the “least restrictive means among available, effective alternatives.” Ashcroft v. ACLU, 542 U.S. 656, 666 (2004). We see no reason, and Idaho has not offered any, why the state could not narrow the subsection by requiring specific intent or by limiting criminal liability to statements that cause a particular harm. Idaho did exactly that with subsection (c), which covers misrepresentation “with the intent to cause economic or other injury.” It is no surprise that after the Supreme Court‘s decision in Alvarez, Congress amended the Stolen Valor Act to criminalize only those “[w]hoever, with intent to obtain money, property, or other tangible benefit, fraudulently hold[] oneself out to be a recipient” of a qualifying medal.
The reach of subsection (a) is so broad that it gives rise to suspicion that it may have been enacted with an impermissible purpose. See Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. Chi. L. Rev. 413, 455 (1996) (“At a certain point—when the asserted interest is insubstantial or when it does not fit the scope of the challenged regulation—the usual presumption of proper purpose topples; there is reason, then, to think that the law, though content neutral, has been tainted by impermissible purpose.“). Our suspicion is not eased after reading the legislative history. The record reflects that the statute was partly motivated to protect members of the agricultural industry from “persecut[ion] in the court of public opinion,” and journalists who use exposés to “publicly crucify a company.” Although, for Equal Protection Clause purposes, we need not decide whether animus motivated this subsection, we do not ignore that a vocal number of supporters were less concerned with the protection of property than they were about protecting a target group from critical speech, which adds to our skepticism that the provision survives the “exacting scrutiny” required under Alvarez. See FCC v. League of Women Voters of Cal., 468 U.S. 364, 387 n.18 (1984) (expressing skepticism about the motivation behind a bill when some supporters were concerned with protecting themselves from critical speech).
In the same vein, if intermediate scrutiny is the standard, as Justice Breyer advocates in Alvarez, then this subsection would still fail. Subsection (a) criminalizes speech that inflicts no “specific harm” on property owners, “ranges very broadly,” and risks significantly chilling speech that is not covered under the statute. Alvarez, 567 U.S. at 736-37 (Breyer, J., concurring). Additionally, it is “possible substantially to achieve the Government‘s objective in less burdensome ways” with “a more finely tailored statute.” Id. at 737. Even under intermediate scrutiny, the subsection “works disproportionate constitutional harm.” Id. at 739.
There is, of course, an easy fix to this First Amendment problem: simply strike the word “misrepresentation” from
B. Idaho Code § 18-7042(1)(b): Obtaining Records by Misrepresentation
Subsection (b)—which criminalizes obtaining records of an agricultural production facility by misrepresentation12—protects against a “legally cognizable harm associated with a false statement” and therefore survives constitutional scrutiny under Alvarez. 567 U.S. at 719. Alvarez highlights that a false statement made in association with a legally cognizable harm or for the purpose of material gain is not protected. Id. at 719, 723. Unlike false statements made to enter property, false statements made to actually acquire agricultural production facility records inflict a property harm upon the owner, and may also bestow a material gain on the acquirer.
This subsection is aimed at conduct—obtaining records—that has long been prohibited in Idaho. For decades, Idaho has
Idaho‘s Public Records Act,
Obtaining records may also bestow a “material gain” on the speaker. See Alvarez, 567 U.S. at 723 (plurality opinion). The records may contain confidential information, such as breeding histories of animals and livestock, and other proprietary research and development information valuable to those in the industry. Once disclosed, this information may lose its confidential or proprietary research status.
Acquiring records by misrepresentation results in something definitively more than does entry onto land—it wreaks actual and potential harm on a facility and bestows material gain on the fibber. So unlike subsection (a), subsection (b) does not regulate constitutionally protected speech, and does not run afoul of the First Amendment.13
Nor does subsection (b) violate the Equal Protection Clause. The district court determined that the statute was “animated by an improper animus toward animal welfare groups and other undercover investigators in the agricultural industry” and could not survive rational basis review. We agree that animus was one of the motivating factors but disagree as to the conclusion.
Legislation is generally presumed to be valid and will be sustained under the Equal Protection Clause “if the classification drawn by the statute is rationally related to a legitimate state interest.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). However, neither “a bare . . . desire to harm a politically unpopular group” nor “negative attitude[s]” or “fears” about that group constitute a legitimate government interest for the purpose of this review. Id. at 448. When a law exhibits a desire to harm an unpopular group, courts will often apply a “more searching” application of rational basis review. Lawrence v. Texas, 539 U.S. 558, 580 (2003) (O‘Connor, J., concurring); see also Cleburne, 473 U.S. at 448-50; U.S. Dep‘t of Agric. v. Moreno, 413 U.S. 528, 535-38 (1973). When the politically unpopular group is not a traditionally suspect class, a court may strike down the challenged statute under the Equal Protection Clause “if the statute serves no legitimate governmental purpose and if impermissible animus toward an unpopular group prompted the statute‘s enactment.” Mountain Water Co. v. Mont. Dep‘t of Pub. Serv. Regulation, 919 F.2d 593, 598 (9th Cir. 1990)
We invoke searching scrutiny here. Although animus towards particular speech by reporters and activists was one factor driving Idaho‘s decision to pass the statute, to strike down the law, we must also determine whether the law serves “no legitimate governmental purpose.” Mountain Water Co., 919 F.2d at 598. The overall purpose of
C. Idaho Code § 18-7042(1)(c): Obtaining Employment by Misrepresentation
Subsection (c) criminalizes knowingly “[o]btain[ing] employment with an agricultural production facility by . . . misrepresentation with the intent to cause economic or other injury” to the facility‘s operations, property, or personnel. Almost as though the Idaho legislature drafted this provision with Alvarez by its side, this subsection follows the Supreme Court‘s guidance as to what constitutes a lie made for material gain. Indeed, the plurality in Alvarez explicitly stated 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 (emphasis added). The misrepresentations criminalized in subsection (c) fall squarely into this category of speech.
Additionally, subsection (c) limits criminal liability to only those who gain employment by misrepresentation and who have the intent to cause economic or other injury to the agricultural production facility, which further cabins the prohibition‘s scope. Given this clear limitation, we disagree with ALDF that the statute would reach “a person who overstates her education or experience to get a job for which she otherwise would not have qualified, whether the person is an undercover investigator or not,” because the requisite intent to injure would not be satisfied. On the other hand, this subsection would apply to an employee hired with an intent to harm the employer, which, as Idaho points out, is a breach of the covenant of good faith and fair dealing that is implied in all employment agreements in Idaho. Jenkins v. Boise Cascade Corp., 141 Idaho 233, 108 P.3d 380, 389-90 (2005); cf. Shackelford v. Shirley, 948 F.2d 935, 938 (5th Cir. 1991) (“[T]hreats made with specific intent to injure and focused on a particular individual easily fall into that category of speech deserving of no first amendment protection.“).
Although it may be true that “[t]he goal of undercover employment-based investi-
We are also not persuaded by ALDF‘s arguments that the statute was enacted solely to suppress a specific subject matter or viewpoint. See R.A.V. v. City of St. Paul, 505 U.S. 377, 384 (1992). We reject ALDF‘s argument that the statute‘s restitution clause is a way to punish journalists and whistleblowers for printing exposés, because we do not interpret the restitution clause to include reputational and publication damages. See Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 52 (1988).
The restitution clause requires a court to order a defendant “to make restitution to the victim of the offense . . . in an amount equal to twice the value of the damage resulting from the violation” of the statute.
That the statute excludes “less tangible damage” such as emotional distress indicates that reputational damages would not be considered an “economic loss,” and we are not aware of a case suggesting otherwise. Rather, Idaho case law defines “economic loss” as “tangible out-of-pocket loss” which the victim “actually suffers.” State v. Straub, 153 Idaho 882, 292 P.3d 273, 280 (2013). The restitution clause focuses on actual, quantifiable economic loss as opposed to abstract damages such as reputational harm. See id. In the absence of Idaho case law to the contrary, we read the statute‘s restitution clause as excluding reputational and publication damages.14 See Berger v. City of Seattle, 569 F.3d 1029, 1046 (9th Cir. 2009) (en banc) (“[W]here an unconstitutionally broad statute is readily subject to a narrowing construction that would eliminate its constitutional deficiencies, we accept that construction.“) (internal quotation marks omitted).
The district court erred by granting summary judgment on this ground.
For the same reasons as provided in our analysis of subsection (b), subsection (c) does not violate the Equal Protection Clause because it serves a “legitimate governmental purpose.” Mountain Water Co., 919 F.2d at 598. The same property and privacy concerns apply here—employees have access to limited areas of an agricultural production facility and other confidential information that may lead to destruction or serious harm—and Idaho has a legitimate governmental purpose in restricting such employment-seeking misrepresentations. This result follows from Alvarez. By establishing that misrepresentations to “secure . . . offers of employment” may be restricted, the Court implic-
II. The Recordings Clause—Idaho Code § 18-7042(1)(d)
We now turn to the Recordings Clause, which prohibits a person from entering a private agricultural production facility and, without express consent from the facility owner, making audio or video recordings of the “conduct of an agricultural production facility‘s operations.”
We easily dispose of Idaho‘s claim that the act of creating an audiovisual recording is not speech protected by the First Amendment. This argument is akin to saying that even though a book is protected by the First Amendment, the process of writing the book is not. Audiovisual recordings are protected by the First Amendment as recognized “organ[s] of public opinion” and as a “significant medium for the communication of ideas.” Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501, 72 S.Ct. 777, 96 L.Ed. 1098 (1952) (extending First Amendment protection to movies). Indeed, “[w]e live, relate, work, and decide in a world where image capture from life is routine, and captured images are part of ongoing discourse, both public and private.” Seth F. Kreimer, Pervasive Image Capture and the First Amendment: Memory, Discourse, and the Right to Record, 159 U. Pa. L. Rev. 335, 337 (Jan. 2011).
It is no surprise that we have recognized that there is a “First Amend-
ment right to film matters of public interest.” Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995). It defies common sense to disaggregate the creation of the video from the video or audio recording itself. The act of recording is itself an inherently expressive activity; decisions about content, composition, lighting, volume, and angles, among others, are expressive in the same way as the written word or a musical score.
Rejecting an argument remarkably similar to Idaho‘s pitch here, we observed that
neither the Supreme Court nor [the Ninth Circuit] has ever drawn a distinction between the process of creating a form of pure speech (such as writing or painting) and the product of these processes (the essay or artwork) in terms of the First Amendment protection afforded . . . . The process of expression through a medium has never been thought so distinct from the expression itself that we could disaggregate Picasso from his brushes and canvas, or that we could value Beethoven without the benefit of strings and woodwinds. In other words, we have never seriously questioned that the processes of writing words down on paper, painting a picture, and playing an instrument are purely expressive activities entitled to full First Amendment protection.
Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1061-62 (9th Cir. 2010) (determining that the tattooing process is purely expressive activity protected by the First Amendment); see also ACLU v. Alvarez, 679 F.3d 583, 595 (7th Cir. 2012) (“The act of making an audio or audiovisual recording is necessarily included within the First Amendment‘s guarantee of speech.“); Fields v. City of Philadelphia, 862 F.3d 353, 358 (3d Cir. 2017) (“The First Amendment protects actual photos, videos, and recordings . . . and for this protection to have meaning the Amendment must
The Recordings Clause prohibits the recording of a defined topic—“the conduct of an agricultural production facility‘s operations.” This provision is an “obvious” example of a content-based regulation of speech because it “defin[es] regulated speech by particular subject matter.” Reed v. Town of Gilbert, — U.S. —, 135 S.Ct. 2218, 2227, 192 L.Ed.2d 236 (2015); see also United States v. Stevens, 559 U.S. 460, 468 (2010) (a statute was content-based when it prohibited “visual [and] auditory depiction[s] . . . depending on whether they depict conduct in which a living animal is intentionally harmed” (alterations in original)). A regulation is content-based when it draws a distinction “on its face” regarding the message the speaker conveys or “when the purpose and justification for the law are content based.” Reed, 135 S.Ct. at 2228. The Recordings Clause checks both boxes. It would permit filming a vineyard‘s art collection but not the winemaking operation. Likewise, a videographer could record an after-hours birthday party among co-workers, a farmer‘s antique car collection, or a historic maple tree but not the animal abuse, feedlot operation, or slaughterhouse conditions.
Problematically, Idaho has effectively eliminated the subject matter of any audio and visual recordings of agricultural operations made without consent and has therefore “prohibit[ed] public discussion of an entire topic.” In re Nat‘l Sec. Letter, 863 F.3d 1110, 1122 (9th Cir. 2017) (internal quotation marks omitted). And, be-
cause the Recordings Clause prohibits the filming of agricultural “operations” but nothing else, its application explicitly pivots on the content of the recording; in other words, only by viewing the recording can the Idaho authorities make a determination about criminal liability. See League of Women Voters, 468 U.S. at 383 (a statute is content-based when “enforcement authorities must necessarily examine the content of the message” to determine whether it complies with the statute). Here, the statute depends not just on “where they say” the message but also—critically—“on what they say.” McCullen v. Coakley, — U.S. —, 134 S.Ct. 2518, 2531, 189 L.Ed.2d 502 (2014).
As a content-based regulation, the Recordings Clause is constitutional only if it withstands strict scrutiny, meaning it “is necessary to serve a compelling state interest” and “is narrowly drawn to achieve that end.” Perry Educ. Ass‘n v. Perry Local Educators’ Ass‘n, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). Strict scrutiny is “an exacting test” requiring “some pressing public necessity, some essential value that has to be preserved; and even then the law must restrict as little speech as possible to serve the goal.” Turner, 512 U.S. at 680. As with the Misrepresentation Clauses, Idaho asserts that the Recordings Clause protects both property and privacy interests. Even assuming a compelling government interest, Idaho has not satisfied the narrow tailoring requirement because the statute is both under-inclusive and over-inclusive.
Prohibiting only “audio or video recordings,” but saying nothing about photographs, is suspiciously under-inclusive. City of Ladue v. Gilleo, 512 U.S. 43, 51, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994) (“[T]hat a regulation of speech may be impermissibly underinclusive is firmly grounded in basic First Amendment principles.“). Why the
Nor has Idaho explained how limiting the filming of operations, but nothing else, effectuates its interests better than eliminating all audio and video recordings at agricultural production facilities. Presumably, for example, an unauthorized recording of the agricultural production facility‘s buildings would still implicate Idaho‘s concerns about property, and the unauthorized filming of an employee birthday party would implicate concerns about privacy. Without some legitimate explanation, we are left to conclude that Idaho is singling out for suppression one mode of speech—audio and video recordings of agricultural operations—to keep controversy and suspect practices out of the public eye. Reed, 135 S.Ct. at 2229 (content-based laws lend themselves to use for “invidious, thought-control purposes“). The district court aptly noted that “[t]he recording prohibition gives agricultural facility owners veto power, allowing owners to decide what can and cannot be recorded, effectively turning them into state-backed censors able to silence unfavorable speech about their facilities.”
The Recordings Clause is also over-inclusive and suppresses more speech than necessary to further Idaho‘s stated goals of protecting property and privacy. See Lone Star Security and Video, Inc. v. City of Los Angeles, 827 F.3d 1192, 1197 (9th Cir. 2016). Because there are “various other laws at [Idaho‘s] disposal that would allow it to achieve its stated interests while burdening little or no speech,” the law is not narrowly tailored. Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 949 (9th Cir. 2011)
(en banc) (applying intermediate scrutiny). For example, agricultural production facility owners can vindicate their rights through tort laws against theft of trade secrets and invasion of privacy.
For these reasons, the Recordings Clause cannot survive First Amendment scrutiny and is therefore unconstitutional. In light of this result, we need not analyze the Recordings Clause under the Equal Protection Clause.
In sum, we affirm the district court‘s grant of summary judgment with respect to
AFFIRMED IN PART, REVERSED IN PART.
Each party shall bear its own costs on appeal.
BEA, Circuit Judge, dissenting in part and concurring in part:
The majority apparently believes that unconsented entry1 upon land is not a “legally cognizable harm” where it “merely
Notes
I dissent because I would hold that the “ability to hold property or to exercise control of it” requires recognition by courts of the owner‘s right to exclusive possession of the land—the right to exclude anyone from entry, at any time, and for any reason at all or indeed for no reason.2 The majority brushes aside this longstanding principle of property in concluding that entry by misrepresentation “does not infringe upon the specific interests trespass seeks to protect.” The majority‘s result contradicts the “universally held” principle that the “right to exclude” is “a fundamental element of the property right.” Kaiser Aetna v. United States, 444 U.S. 164, 179-80 (1979). Whilst the majority opinion relies on out-of-circuit cases which seemingly limit a landowner‘s rights,3 but which are distinguishable, I choose to rely on the law of Idaho and the common-law right of property, ages old.
“There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individ-
(1965); see also id., cmt. b (“A conscious misrepresentation as to the purpose for which admittance to the land is sought, may be a fraudulent misrepresentation of a material fact.“).
ual in the universe.” 2 William Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND *2.
For centuries, Anglo-American law has affirmed this central feature of property—the right to exclude others—in the “general rule” that “our law holds the property of every man so sacred, that no man can set his foot upon his neighbour‘s close without his leave.” Florida v. Jardines, 569 U.S. 1, 8 (2013) (alteration and internal quotation omitted) (quoting Entick v. Carrington, 2 Wils. K.B. 275, 95 Eng. Rep. 807 (K.B. 1765), “a case ‘undoubtedly familiar’ to ‘every American statesman’ at the time of the Founding“). The Supreme Court of the United States has repeatedly held that “as to property reserved by its owner for private use, ‘the right to exclude others is “one of the most essential sticks in the bundle of rights that are commonly characterized as property.““” See, e.g., Nollan v. California Coastal Comm‘n, 483 U.S. 825, 831 (1987) (quoting Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982) (alteration omitted)). I therefore dissent from the majority opinion as to subsection (a) of the Idaho statute at issue. I otherwise concur in the majority opinion.
The majority analyzes this case under United States v. Alvarez, in which the Supreme Court invalidated under the First Amendment the Stolen Valor Act,
of the Idaho statute does not prohibit “pure speech.” Although under Alvarez a lie—without “more“—is pure speech,5 the Idaho statute is directed at something “more“: the conduct of knowingly entering an agricultural facility through the use of a lie. The use of the term “enters” is a clear invocation of the standards and interests of the law of trespass.6 This provision no more regulates pure speech than do prohibitions on larceny by trick or false pretenses.7
Therefore, I don‘t see how Alvarez is applicable, or that a First Amendment analysis is at all necessary to subsection (a) of the subject Idaho statute. See Pickup v. Brown, 740 F.3d 1208, 1230 (9th Cir. 2014)8 (“[A]n act that ‘symbolizes nothing,’
Even assuming that Alvarez is applicable here, subsection (a) survives First Amendment review under Alvarez. As the majority recognizes, false speech may be criminalized if made “for the purpose of
material gain” or “material advantage,” or if it inflicts a “legally cognizable harm.” Alvarez, 567 U.S. at 719, 723, 132 S.Ct. 2537 (plurality opinion). Similarly, in his concurrence with Justice Kennedy‘s plurality opinion in Alvarez, Justice Breyer distinguished the Stolen Valor Act from presumptively constitutional statutes, such as those prohibiting fraud, impersonation, trademark infringement etc., which prohibit “a subset of lies where specific harm is more likely to occur.” Id. at 734-36 (Breyer, J., concurring) (emphasis added). To the extent that subsection (a) prohibits misrepresentations as well as entries, I have no difficulty concluding that “enter[ing]” the property of another “by . . . misrepresentation” inflicts a “legally cognizable harm,” Alvarez, 567 at 719, is done for the purpose of material gain, id. at 723, and involves “a subset of lies” where the “specific harm” of trespass “is more likely to occur,” id. at 736 (Breyer, J., concurring).
The state of Idaho has long recognized that a violation of a property owner‘s exclusive dominion over his land is a legally cognizable harm. See Marshall v. Niagara Springs Orchard Co., 22 Idaho 144, 125 P. 208, 212 (1912) (“[I]t is the appellant‘s right by reason of his ownership of the land to have exclusive possession of said land.” (emphasis added)); see also Walter E. Wilhite Revocable Living Tr. v. Nw. Yearly Meeting Pension Fund, 128 Idaho 539, 916 P.2d 1264, 1274 (1996) (“Trespass is a tort against possession committed when one, without permission, interferes with another‘s exclusive right to possession of the property.” (emphasis added));
In fact, no less an authority than the Supreme Court of Idaho has found an actionable trespass where the defendant used a misrepresentation to gain access to the plaintiff‘s property and the defendant merely crossed the property. In Green v. Beaver State Contractors, Inc., the contractor went to plaintiff Lula M. Green and sought permission to enter and remove “lava rock” from her land. 93 Idaho 741, 472 P.2d 307, 307 (1970). The contractor offered to pay $1 plus 5 cents “per yard of rock removed” from Green‘s land, and she agreed. Id. at 307-08. In reality, however, the contractor removed rock only from land adjoining Green‘s land and was merely using Green‘s land as a means of access to obtain the rock from the third party, thus avoiding any obligation to pay Green for “rock removed.” Id. at 308. “In view of the circumstances,” namely the “misrepresentation . . . by [the contractor],” the Idaho Supreme Court found a common-law trespass and remanded the case for a determination of Green‘s damages. Id. at 310. Therefore, the Supreme Court of Idaho has recognized that employing misrepresentation to gain entry inflicts a legally cognizable harm, even if the invader entered “merely . . . to cross the threshold of another‘s property.”
In the case of Jacque v. Steenberg Homes, Inc., 209 Wis. 2d 605, 563 N.W.2d 154 (Wisc. 1997), the Supreme Court of Wisconsin affirmed the value of the right to exclude even more emphatically. It affirmed an eye-popping award of punitive damages for the precise sort of “mere” threshold-crossing that the majority pooh-poohs here. In that case, the defendant, Steenberg Homes, had sold a mobile home to a neighbor of the Jacques, who were retired farmers. It determined that “the easiest route” to deliver the mobile home would be to cut across the Jacques’ land.
The Idaho trespass statute cited in the majority opinion is not relevant. The majority cites
[T]he Idaho statutes governing trespass only apply when the trespass is shown to have been wilful and intentional, and the wronged party seeks treble damages therefor, as authorized by Section 6-202. In all other circumstances, the common law principles relating to trespass actions apply. The court is unaware of any recent Idaho cases to the contrary, and the 1976 amendments to the statutes did nothing to alter this interpretation . . . .
Mock v. Potlatch Corp., 786 F. Supp. 1545, 1548 (D. Idaho 1992) (citing Menasha Woodenware Co. v. Spokane Int‘l Ry., 19 Idaho 586, 115 P. 22 (1911)).11 Thus, the “imaginations” and “affections” of Idahoans are not so different from those of greater mankind. See Blackstone, supra. Unauthorized entry upon the land of another is common-law trespass in Idaho and thus a legally cognizable harm.12
Furthermore, there is no suggestion in either Desnick or Food Lion that the First Amendment prohibits a state court or state legislature from establishing a different rule eliminating consent to enter land when the consent is procured by fraud. Cf. Illinois, ex rel. Madigan v. Telemarketing Assocs., Inc., 538 U.S. 600, 624, 123 S.Ct. 1829, 155 L.Ed.2d 793 (2003) (“Consistent with our precedent and the First Amendment, States may maintain fraud actions when fundraisers make false or misleading representations designed to deceive donors about how their donations will be used.“); State v. Jesser, 95 Idaho 43, 501 P.2d 727, 737 n.29 (1972) (“It has long been settled that fraud vitiates the consent of the victim to the taking of his property by agreement, and that, consequently, the taking is a constructive trespass upon possession . . . .“);
Subsection (a) is also limited to lies which are likely to cause a “specific harm,” as Justice Breyer‘s Alvarez concurrence would require. Justice Breyer distinguished the Stolen Valor Act, which prohibited “falsity and nothing more,” from various other statutes which prohibit certain false or deceptive communications which cause or are likely to cause a “specific harm.” Alvarez, 567 U.S. at 734-36 (Breyer, J., concurring). For example, (1) fraud statutes require “actual injury,” (2) defamation statutes require a reputational harm, (3) intentional infliction of emotional distress liability requires an “emotional, dignitary, or privacy-related” harm, (4) statutes dealing with perjury or lying to government officials are “typically limited to circumstances where a lie is likely to . . . interfer[e] with the functioning of a government department,” (5) impersonation statutes focus “may require” a showing that someone was deceived into following a course of action
Conversely, when one obtains permission to enter onto the land of another, he obtains a material gain: a license to enter. The resulting license is a legally cognizable interest or privilege. See Restatement (First) of Property § 512 (1944) (“[T]he word ‘license’ indicates the legal interest arising from a consent.“). It confers the ability to do lawfully that which the law otherwise forbids and punishes as trespass. Shultz v. Atkins, 97 Idaho 770, 554 P.2d 948, 953 (1976) (“[A]n essential element of a license . . . [is] the right to use land in the possession of another.“). Take the example, suggested by the Majority‘s opinion, of the teenager who lies to get a reservation at an exclusive restaurant. The majority admits that the teenager gains something (entry to the restaurant) but concludes, without explanation,13 that “[t]his entry alone does not constitute a material gain.” No material gain to the teenager? However one defines “material”14 and “gain,”15 it seems a stretch to say the teenager stands to obtain neither at the restaurant. The majority must imagine the lad served thin gruel indeed for him to have received nothing of “substance,” leaving him with a sense of not “getting something” as a result of hood-winking the maître d‘hôtel.
Furthermore, if the teenager takes a seat in the restaurant with permission procured by fraud, he commits trespass and is liable for at least nominal damages. But if he obtains consent, he is able to gain lawful (albeit limited) use of another‘s land—a discrete, legally cognizable advantage16 that he did not have before consent was given. If nothing else, he gains a suspen-
The majority‘s restaurant analogy merely evades the crucial inquiries under Alvarez. First, “entry alone” is a legally cognizable harm under Idaho law; that is why under Idaho law aggrieved landowners, subjected to a trespass, need not prove unjust enrichment or any other form of damages. Taysom, 349 P.2d at 560. Legally cognizable harm—not some unknown quantum of physical damage or economic harm to be determined by courts ex post, on a case-by-case basis—is what Alvarez requires. Alvarez, 567 U.S. at 719. Second, although “entry alone” may seem insignificant to the majority, it was apparently significant to the Beaver State contractor who took the shortcut across Ms. Green‘s land. See supra at 1209-10. And in the majority‘s hypothetical, it is apparently significant to restauranteurs who offer their in-demand tables to “well-known journalists” but not to journalists’ teenage sons. Indeed, the teenager does cause economic harm in the majority‘s hypothetical: When he secures one of a limited number of reservations, he takes a valuable table off of the market and puts it to a perhaps economically sub-optimal use (his own). That is, unless his journalist mother has been splendid as to an allowance. Third, the majority‘s hypothetical does not present a case of entry “by misrepresentation.” The maître d‘hôtel must recognize that the teenager is not his famous journalist mother when the teenager arrives at the restaurant; if he seats the teenager anyway, then the restaurant consents to the entry and the teenager does not violate the Idaho statute. Finally, the majority concludes that the teenager‘s lie is “pure speech.” “Nothing but speech,” yes; but a lie is seldom “pure.” Nonetheless, the Idaho statute criminalizes entries, not lies. See supra, at 1207.
The majority seems to be concerned—understandably—that the Idaho law‘s punishments for such trespasses are Draconian or unwise (“the teenager would be subject to punishment of up to one year in prison, a fine not to exceed $5,000, or both.“). But that concern has nothing to do with whether entry-by-misrepresentation inflicts a legally cognizable harm or provides a material gain—which is to say that it has nothing to do with the Alvarez analysis. That the Idaho statute may take a heavy-handed approach to punishing certain trespasses is a policy argument against the Idaho statute, and that argument should be addressed to Idaho‘s legislators and voters.
The misconception of the ancient right at stake—the right of an owner of real property to exclude all others from his property—is where the majority goes wrong, as our holding as to subsection (b) demonstrates. Applying Alvarez to subsection (b), the majority finds that “[o]btaining an agricultural production facility‘s records by misrepresentation inflicts a ‘legally cognizable harm’ by impairing an agricultural production facility owner‘s ability to control who can assert dominion over, and take possession of, his property.” Quite right. The farmer‘s records are his property. So is his land his property. Subsection (a) is constitutional for precisely the same reason: Entering an agricultural production facility by misrepresentation inflicts a “legally cognizable harm” by “impairing an agricultural production facility owner‘s ability to control who can assert dominion over . . . his [real] property.” There is no meaningful legal distinction between the two subsections under Alvarez, and neither is unconstitutional.
I respectfully dissent.
CARLOS T. BEA
CIRCUIT JUDGE