WESTERN WATERSHEDS PROJECT; National Press Photographers Association; Natural Resource Defense Council, Plaintiffs-Appellants, and People for the Ethical Treatment of Animals Inc; Center for Food Safety, Plaintiffs, v. Peter K. MICHAEL, in his official capacity as Attorney General of Wyoming; Todd Parfitt, in his official capacity as Director of the Wyoming Department of Environmental Quality; Patrick Jon Lebrun, Esq., in his official capacity as County Attorney of Fremont County, Wyoming; Joshua Smith, in his official capacity as County Attorney of Lincoln County, Wyoming; Clay Kainer, in his official capacity as County and Prosecuting Attorney of Sublette County, Wyoming, Defendants-Appellees, and Center for Agriculture and Food Systems; First Amendment Legal Scholars, Amici Curiae.
No. 16-8083
United States Court of Appeals, Tenth Circuit.
September 7, 2017
869 F.3d 1189
Second, R-S-C asks us to apply the immigration equivalent of the rule of lenity to resolve this interpretive question in her favor. See Cardoza-Fonseca, 480 U.S. at 449, 107 S.Ct. 1207 (referring to the “longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien” (emphasis added) (citations omitted)). This principle of leniency is animated by the harsh penalty of deportation—it has nothing to do with denying aliens extra benefits while lawfully present in the United States. See INS v. Errico, 385 U.S. 214, 225, 87 S.Ct. 473, 17 L.Ed.2d 318 (1966) (“We resolve the doubts in favor of [the alien] because deportation is a drastic measure and at times the equivalent of banishment or exile[.] It is the forfeiture for misconduct of a residence in this country.” (emphasis added) (internal citation omitted) (quoting Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 92 L.Ed. 433 (1948))). R-S-C does not face removal to another country because her removal has been withheld pursuant to
CONCLUSION
The INA does not clearly answer the question whether an illegal reentrant with a reinstated removal order may apply for asylum. The Attorney General, however, has reasonably interpreted the ambiguous statutory scheme in concluding that such an alien is not eligible for asylum relief. We therefore defer to the Attorney General‘s interpretation, and DENY the petition for review.13
David S. Muraskin, Public Justice, P.C., Washington, D.C. (Leslie A. Brueckner, Public Justice, P.C., Oakland, California, Justin Marceau, University of Denver Sturm College of Law, Denver, Colorado, Deepak Gupta, Gupta Wessler, PLLC, Washington, D.C., Michael E. Wall, San Francisco, California, Margaret Hsieh, Natural Resources Defense Council, New York, New York, and Reed Zars, Laramie,
Erik E. Petersen (James Kaste, with him on the brief), Office of the Attorney General for the State of Wyoming, Cheyenne, Wyoming, for Peter K. Michael and Todd Parfitt, Defendants-Appellees.
Matt Gaffney, Chief Deputy Sublette County and Prosecuting Attorney, Pinedale, Wyoming, filed a brief for Clay Kainer, Defendant-Appellee.
Richard Rideout, Law Office of Richard Rideout, PC, Cheyenne, Wyoming, filed a brief for Joshua Smith and Patrick Jon LeBrun, Defendants-Appellees.
Carrie Ann Scrufari, Center for Agriculture and Food Systems, Vermont Law School, South Royalton, Vermont, filed an Amicus Curiae brief for Center for Agriculture and Food Systems.
Alan K. Chen, University of Denver Sturm College of Law, Denver, Colorado, and Edward T. Ramey, Tierney Lawrence, LLC, Denver, Colorado, filed an Amicus Curiae brief for First Amendment Legal Scholars.
Before LUCERO, McKAY, and HARTZ, Circuit Judges.
LUCERO, Circuit Judge.
In addition to its generally applicable law of trespass, the State of Wyoming has enacted a pair of statutes imposing civil and criminal liability upon any person who “[c]rosses private land to access adjacent or proximate land where he collects resource data.”
We conclude that the statutes regulate protected speech under the First Amendment and that they are not shielded from constitutional scrutiny merely because they touch upon access to private property. Although trespassing does not enjoy First Amendment protection, the statutes at issue target the “creation” of speech by imposing heightened penalties on those who collect resource data. See Sorrell v. IMS Health Inc., 564 U.S. 552, 570, 131 S.Ct. 2653, 180 L.Ed.2d 544 (2011). Exercising jurisdiction under
I
Wyoming has long prohibited trespass as a matter of both criminal and civil law. See
In 2015, Wyoming enacted a pair of statutes that prohibited individuals from entering “open land for the purpose of collecting resource data” without permission from the owner.
The 2015 criminal statute imposed heightened penalties above and beyond Wyoming‘s general trespass provision. It provided a maximum term of imprisonment of one year and a $1,000 fine for first time offenders.
Plaintiffs, who are advocacy organizations, filed suit to challenge the 2015 statutes. They argued that the statutes violated the Free Speech and Petition Clauses of the First Amendment, the Equal Pro
After the district court‘s decision, Wyoming amended the two statutes.
Plaintiffs amended their complaint to challenge the 2016 statutes, re-alleging free speech and equal protection claims. Defendants again moved to dismiss. This time, the district court granted the motion in full. It concluded that the revised version of the statutes did not implicate protected speech. Plaintiffs timely appealed.3
II
We review de novo the district court‘s grant of a motion to dismiss under
On appeal, plaintiffs challenge only the district court‘s ruling regarding subsections (c) of the statutes under the Free Speech Clause of the First Amendment. Those provisions state:
(c) A person [is guilty of trespassing/commits a civil trespass] to access adjacent or proximate land if he:
(i) Crosses private land to access adjacent or proximate land where he collects resource data; and
(ii) Does not have:
(A) An ownership interest in the real property or, statutory, contractual or other legal authorization to cross the private land; or
(B) Written or verbal permission of the owner, lessee or agent of the owner to cross the private land.
A
In granting defendants’ motion to dismiss, the district court concluded that the statutes do not regulate protected First Amendment activity. See Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985) (if the regulated activi
Although subsections (a) and (b) of the statutes govern actions on private property, the district court was mistaken in focusing on these cases with respect to subsections (c). Under a plain text reading, those subsections regulate activity on public property. Provided that such land is adjacent or proximate to private property, subsections (c) apply to the collection of resource data on public land.
Defendants counter that the statutes regulate conduct on public land only if an individual first trespasses on private land. They characterize plaintiffs’ argument as asserting a right to trespass. That framing misstates the issue. In considering a statute, we must view it in context and in light of related statutes. See United States v. Ko, 739 F.3d 558, 560 (10th Cir. 2014). Wyoming already prohibits trespass in general, albeit with lesser penalties than provided for in the statutes at issue. See
The fact that one aspect of the challenged statutes concerns private property does not defeat the need for First Amendment scrutiny. In Watchtower Bible & Tract Society of New York, Inc. v. Village of Stratton, 536 U.S. 150, 122 S.Ct. 2080, 153 L.Ed.2d 205 (2002), the Supreme Court applied the First Amendment to a law regulating both access to private property and speech. The ordinance at issue there “prohibit[ed] canvassers from going on private property for the purpose of explaining or promoting any cause, unless they receive[d] a permit and the residents visited [had] not opted for a no solicitation sign.” Id. at 165, 122 S.Ct. 2080 (quotations omitted). Invalidating the ordinance, the Court explained that although the village identified several important interests at stake, the notion that “a citizen must first inform the government of her desire to speak to her neighbors and then obtain a permit to do so” was “a dramatic departure from our national heritage and constitutional tradition.” Id. at 166, 122 S.Ct. 2080. We thus consider whether the collection of resource data on public lands is entitled to First Amendment protection.
B
Wyoming has adopted expansive definitions of “resource data” and “collect.” The former covers any “data relating to land or land use,” including information about “air, water, soil, conservation, habitat, vegetation or animal species.”
Plaintiffs allege that such activities are indispensable to their participation in the formation of public policy. For example, the Western Watersheds Project reports information on water quality, including GPS location data, to the Wyoming Department of Environmental Quality pursuant to the Clean Water Act. Under the Clean Water Act, state agencies must “actively solicit[ ]” “field data” from the public that can be used to evaluate pollutants in waterways.
We conclude that plaintiffs’ collection of resource data constitutes the pro
Applying this principle, several of our sibling circuits have held that the First Amendment protects the recording of officials’ conduct in public. See Fields v. City of Phila., 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 also protect the act of creating that material.” (citation omitted)); Turner v. Lieutenant Driver, 848 F.3d 678, 689 (5th Cir. 2017) (“[T]he First Amendment protects the act of making film, as there is no fixed First Amendment line between the act of creating speech and the speech itself.” (quotation omitted)); Am. Civil Liberties Union of Ill. v. Alvarez, 679 F.3d 583, 595 (7th Cir. 2012) (“The right to publish or broadcast an audio or audiovisual recording would be insecure, or largely ineffective, if the antecedent act of making the recording is wholly unprotected....“); Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011) (“Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting the free discussion of governmental affairs.” (quotation omitted)); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (“The First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest.“); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995) (noting plaintiff‘s “First Amendment right to film matters of public interest“).
Many of the activities covered by the challenged statutes fit comfortably in the speech-creation category recognized in these cases. An individual who photographs animals or takes notes about habitat conditions is creating speech in the same manner as an individual who records a police encounter. See Alvarez, 679 F.3d at 595-96 (“[B]anning photography or note-taking at a public event would raise serious First Amendment concerns; a law of that sort would obviously affect the right to publish the resulting photograph or disseminate a report derived from the
Moreover, plaintiffs use the speech-creating activities at issue to further public debate. “There is practically universal agreement that a major purpose of the First Amendment was to protect the free discussion of governmental affairs....” Ariz. Free Enter. Club‘s Freedom Club PAC v. Bennett, 564 U.S. 721, 755, 131 S.Ct. 2806, 180 L.Ed.2d 664 (2011) (quotations and alteration omitted); see also Glik, 655 F.3d at 82 (“Freedom of expression has particular significance with respect to government because it is here that the state has a special incentive to repress opposition and often wields a more effective power of suppression.” (quotation and alterations omitted)). We agree with the Seventh Circuit that “the First Amendment provides at least some degree of protection for gathering news and information, particularly news and information about the affairs of government.” Am. Civil Liberties Union of Ill. v. Alvarez, 679 F.3d at 597.
This is not to say that all regulations incidentally restricting access to information trigger First Amendment analysis. In Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965), the Court explained that the “right to speak and publish does not carry with it the unrestrained right to gather information.” Id. at 17, 85 S.Ct. 1271. That case concerned a ban on travel to Cuba, which plaintiff argued inhibited the “free flow of information” to citizens who “might acquaint themselves at first hand with the effects abroad of our Government‘s policies.” Id. at 16, 85 S.Ct. 1271. The Court held that the restriction did not implicate the First Amendment because “[t]here are few restrictions on action which could not be clothed by ingenious argument in the garb of decreased data flow.” Id. at 16-17, 85 S.Ct. 1271; see also Pell v. Procunier, 417 U.S. 817, 834, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974) (rejecting argument that “the Constitution imposes upon government the affirmative duty to make available to journalists sources of information not available to members of the public generally“).
Had plaintiffs challenged Wyoming‘s general trespass statute as impairing their right to gather information, Zemel might control. There, the plaintiff asserted a First Amendment right to be exempt from an otherwise generally applicable law in order to facilitate speech indirectly limited by the law‘s travel restriction. In contrast, plaintiffs in this case contest the constitutionality of Wyoming‘s differential treatment of individuals who create speech. For Zemel to be analogous, the federal government there would have had to implement a law banning travel to Cuba for the purpose of writing about or filming what they observe. The challenged statutes apply specifically to the creation of speech, and thus we conclude they are subject to the First Amendment. See Brown, 564 U.S. at 793 n.1, 131 S.Ct. 2729.
C
Because we have determined that the statutes at issue regulate protected speech, plaintiffs ask us to go further. They seek a declaration about the level of scrutiny to be applied and whether the statutes survive the appropriate review. The district court did not conduct these
III
For the foregoing reasons, we REVERSE the district court‘s conclusion that subsections (c) of the 2016 statutes are not entitled to First Amendment protection and REMAND for further proceedings consistent with this opinion.