This post is not legal advice.
Recently, a federal court of appeals reversed a lower court decision involving a data trespass law passed by Wyoming in 2015. This new trespass law created criminal and civil penalties when a person trespassed to collect resource data on private property. The court of appeals concluded that the First Amendment of the U.S. Constitution protected the collection of data and the new trespass law was unconstitutional. Wyoming’s new trespass law did not directly speak to protecting agricultural operations; many have viewed this law as a form of an ag-gag law. As we have discussed before, although it is unconstitutional for states to adopt these laws, producers still have options to protect their operations.
Wyoming’s New Data Trespass Law
In 2015, Wyoming enacted new criminal and civil penalties for the collection of resource data when the person crosses private property to access adjacent or proximate land (§ 6-3-414). The issue with the law was (c) that made it trespass to access adjacent lands by crossing private land to collect the resource data. Under this new law, Wyoming passed heightened criminal penalties for violating the law. Fines for first offenses were a maximum of $1,000 and for repeat offenders up to a $5,000 fine or up to a year in prison. At the time the law was passed, Wyoming had a traditional trespass law on the books. The Wyoming law provided for no more than six months in prison and a $750 fine.
Tenth Circuit’s Decision
The district court had granted Wyoming’s motion to dismiss finding that the new law did not regulate speech protected under the First Amendment. On appeal, the Tenth Circuit Court of Appeals disagreed with this view. According to the court of appeals, the new law regulated speech on public land when the public land was adjacent or proximate to private land.
The collection of resource data was protected by the First Amendment and deserved protection. In this case, the plaintiffs were groups who participated in the formation of public policy. One group collected water samples with GPS location data that is provided to Wyoming to help in determining pollutants in the state’s waterways. Another group submitted geo-tagged photographs to the Fish and Wildlife Service to support petitions listing species on the endangered species list. To the court, this resource data collection was protected speech. The First Amendment protects the creation of speech such as what the groups are doing here. The government cannot bypass the First Amendment by making creation speech illegal. To the court of appeals, what the plaintiffs were doing, in this case, was similar to cases where groups were allowed to record public officials when in public.
Once created this resource data is used to further public debate. To the court, there is universal agreement that a major purpose of the First Amendment was to protect the free discussion of public affairs. Wyoming points to a case that found the ban on traveling to Cuba did not violate the First Amendment to show that courts have allowed some laws to restrict access to information gathering incidentally. The court disagreed that the situations were similar. In the case of the Cuba ban, the restriction did not implicate the First Amendment. If the Cuba ban had made it a crime to travel to Cuba to collect data on conditions in Cuba, then the cases would have been similar. To the court, if the plaintiffs had challenged the general trespass statute then it would have been similar to the Cuba ban.
To the court, the new law prohibited a person from engaging in free speech on public land potentially. The court disagreed with the state that the law only regulates conduct on public land if the person trespasses first on private land. Because the new law could potentially limit the creation of protected speech on public lands, the new trespass law violated the First Amendment.
As I have discussed earlier, and Ashley Ellixson discussed before me, courts have not looked favorably on these ag-gag laws. In many cases, these laws limit protected speech in violation of the First Amendment. Based on the current outcomes in federal court, groups are considering challenging more of these laws in federal court.
What can you do? You have options to protect your operation if you are concerned about data and images of your operation being used to present your operation in a bad light. Consider hanging no trespassing signs. Plant trees to obstruct the view of the operation. With employees, consider doing background checks on all applicants to determine that they are who they are, check references, and use employment contracts, employee handbooks, etc. to limit employees ability to capture photos of the operation, limit cell phone use, etc.
At the same time, make sure that employees have the proper training to do their jobs. Give them opportunities to attend meetings to learn the latest livestock handling techniques or techniques associated with crop production. Also, make sure employees have access to the latest equipment to do their jobs. Considering these will help protect the operation more than any ag-gag law could.
Western Watersheds Project v. Michael, 2017 WL 3908875 (10th Cir. 2017).
Wyo. Stat. Ann. § 6-3-414 (2017).