Circuit Courts Differ on Whether Lies to Access Homeownership Are Protected by the First Amendment
A verbose 10th Circuit split from the 8th Circuit to find out if lying is constitutionally protected speech. The disputed terrain between the Denver-based 10th Circuit and the St. Louis-based 8th Circuit involves their interpretations of the so-called “ag-gag” laws in Kansas and Iowa.
In a 2: 1 opinion, the 10th Circuit on August 19 overturned the Kanas Farm Animal, Field Crops and Research Facilities Protection Act. On August 10, the Eighth Circuit found the Iowa employment provision unconstitutional, but suggested that a more restrictive law making false statements explicitly made to obtain employment could pass the course.
The 8th Circuit found the existing language too broad as it could penalize misrepresentation unrelated to job advertisements. He confirmed that Iowa’s access provision did not violate the Constitution, writing that “intentionally false speech” made for legal purposes can be prohibited without violating the First Amendment right to free speech.
In the 72-page opinion of the 10th, Judge Harris Hartz’s dissent makes the point. “To begin with, I must address and reject the complainants’ argument (which the majority neither accepts nor rejects) that lying to gain access to property is protected speech.”
Hartz notes that the plaintiffs rely on the United States v Alvarez case, allowing people to claim they falsely hold military honors. The Alvarez Supreme Court, the government said, cannot prohibit false statements just because they are false.
But there are still plenty of reasons to ban damaging misrepresentation, says Hartz. “I agree with the majority opinion in that the Supreme Court majority held that bans on factual misrepresentation that cause legally recognizable harm tend not to offend the Constitution. “
“The plaintiffs argue that a property owner suffers no legally recognizable prejudice when someone obtains consent to enter the property by deception,” Hartz continues. “This claim is simply false.”
He says the power of a landowner to control who may be on the property is “a fundamental and ancient right”. Without leave, the judge said there was legally recognizable harm to the owner. “In other words, entering land through such false declarations violates the legal rights of the landowner,” he adds.
Consent fraudulently obtained on the property of others is not protected by the First Amendment, according to Hartz, who was appointed to the court of appeals by President George W. Bush.
Contradictory decisions of circuit courts can often only be resolved through Supreme Court review.
Justices Carolyn B. McHugh and Michael R. Murphy were in the majority for the Kansas law review. President Barack Obama appointed McHugh and President Bill Clinton appointed Murphy.
Writing on behalf of the majority, McHugh said the Kansas law subsections regulate speech, not just conduct, as they dictate what individuals must say to gain access to animal husbandry operations.
The 10th Circuit maintained a permanent ban against state enforcement of Kansas law due to the First Amendment violation.
The Animal Legal Defense Fund (ALDF) is the primary claimant for the Iowa and Kansas challenges.
Here are the elements of Kansas law that was struck down by the 10th Circuit:
(a) No person shall, without the effective consent of the owner and with the intention of interfering with the business carried on in the animal facility, damage or destroy any animal facility or any animal or property in or on an animal facility.
(b) No person shall, without the effective consent of the owner, acquire or exercise control over any animal facility, animal in a pet facility or other property of a pet facility, with the intent to deprive the owner of a such facility, animal or property and damage the business conducted at the pet store.
(c) No person shall, without the effective consent of the owner and with the intention of harming the business conducted in the animal facility:
(1) [e]enter a pet store, then not open to the public, with the intention of committing an act prohibited by this section;
(2) remain hidden, with the intention of committing an act prohibited by this section, in a pet store;
(3) enter a pet store and commit or attempt to commit an act prohibited by this section; Where
(4) enter an animal store to take photos by photography, video camera or by any other means.
(d) (1) No person shall, without the effective consent of the owner and with intent to interfere with the business carried on in the animal facility, enter or remain in an animal facility if the person:
(A) [h]announces that entry has been prohibited; Where
(B) received a departure notice but did not do so. Kan. Stat. Anne. § 47-1827.1
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