Aldf v. Lawrence Wasden

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANIMAL LEGAL DEFENSE FUND; No. 15-35960
PEOPLE FOR THE ETHICAL
TREATMENT OF ANIMALS INC; D.C. No.
AMERICAN CIVIL LIBERTIES UNION 1:14-cv-00104-
OF IDAHO; CENTER FOR FOOD BLW
SAFETY; FARM SANCTUARY; RIVER’S
WISH ANIMAL SANCTUARY;
WESTERN WATERSHEDS PROJECT; OPINION
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.
Appeal from the United States District Court
for the District of Idaho
2 ANIMAL LEGAL DEFENSE FUND V. WASDEN
B. Lynn Winmill, Chief District Judge, Presiding
Argued and Submitted May 12, 2017
Seattle, Washington
Filed January 4, 2018
Before: M. Margaret McKeown, Richard C. Tallman,
and Carlos T. Bea, Circuit Judges.
Opinion by Judge McKeown;
Partial Concurrence and Partial Dissent by Judge Bea
SUMMARY *
Civil Rights
The panel affirmed in part and reversed in part the
district court’s entry of summary judgment in favor of the
Animal Legal Defense Fund and vacated in part the district
court’s permanent injunction against enforcement of Idaho’s
Interference with Agricultural Production law, Idaho Code
§ 18-7042.
The Interference with Agricultural Production law was
enacted after a disturbing secretly-filmed expose of
operations at an Idaho dairy farm went live on the internet.
The statute—targeted at undercover investigation of
agricultural operations—broadly criminalizes making
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
ANIMAL LEGAL DEFENSE FUND V. WASDEN 3
misrepresentations to access an agricultural production
facility as well as making audio and video recordings of the
facility without the owner’s consent.
The panel held that Idaho’s criminalization of
misrepresentations to enter a production facility, § 18-
7042(1)(a), could not survive First Amendment scrutiny.
The panel held that the subsection criminalized innocent
behavior, was staggeringly overbroad, and that the purpose
of the statute was, in large part, targeted at speech and
investigative journalists. The panel also struck down the
statute’s subsection which banned audio and video
recordings of a production facility’s operations, § 18-
7042(1)(d). The panel held that the Recordings Clause
regulated speech protected by the First Amendment and was
a classic example of a content-based restriction that could
not survive strict scrutiny.
The panel held that § 18-7042(1)(b)—which
criminalizes obtaining records of an agricultural production
facility by misrepresentation—protected against a legally
cognizable harm associated with a false statement and
therefore survived constitutional scrutiny under United
States v. Alvarez, 567 U.S. 709 (2012). Finally, the panel
upheld the constitutionality of § 18-7042(1)(c), which
criminalizes obtaining employment by misrepresentation
with the intent to cause economic or other injury. The panel
rejected plaintiffs’ argument 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 in such a case, the law’s requisite intent to injure
would not be satisfied.
Dissenting in part and concurring in part, Judge Bea
stated that subsection § 18-7042(1)(a), pertaining to the
4 ANIMAL LEGAL DEFENSE FUND V. WASDEN
criminalization of misrepresentations to enter a production
facility, should survive First Amendment review. Judge Bea
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.
COUNSEL
Carl Jeffrey Withroe (argued) and Clay R. Smith, Deputy
Attorneys General; Steven L. Olsen, Chief of Civil
Litigation; Lawrence G. Wasden, Attorney General; Office
of the Attorney General, Boise, Idaho; for Defendant-
Appellant.
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.
ANIMAL LEGAL DEFENSE FUND V. WASDEN 5
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.
Hannah Connor, Center for Biological Diversity,
Washington, D.C.; Tarah Heinzen, Food & Water Watch,
Washington, D.C.; for Amici Curiae Center for Biological
Diversity and Food & Water Watch.
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.
6 ANIMAL LEGAL DEFENSE FUND V. WASDEN
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.
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
1
See Brooke Kroeger, Undercover Reporting: An American
Tradition, IRE J. 20 (Spring 2014).
2
Upton Sinclair, The Jungle (Dover Thrift eds., Dover Publications
2001) (1906).
ANIMAL LEGAL DEFENSE FUND V. WASDEN 7
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. Idaho Code § 18-7042. That
legislation—targeted at undercover investigation of
agricultural operations—broadly criminalizes making
misrepresentations to access an agricultural production
facility as well as making audio and video recordings of the
facility without the owner’s consent. Statutes of this genre—
dubbed by some as Ag-Gag laws—have been passed in
several western states. 4
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—§ 18-7042(1)(a)–(d)—are unconstitutional on First
Amendment and Equal Protection grounds. The Animal
3
Mercy for Animals, Burger King Cruelty–Video Exposes Horrific
Animal Abuse at a Burger King Dairy Supplier, YouTube (Oct. 9, 2012),
https://www.youtube.com/watch?v=lN_YcWOuVqk&oref=https
%3A%2F%2Fwww.youtube.com%2Fwatch%3Fv%3DlN_YcWOuVq
k&has_verified=1.
4
See Rita-Marie Cain Reid & Amber L. Kingery, Putting A Gag on
Farm Whistleblowers: The Right to Lie and the Right to Remain Silent
Confront State Agricultural Protectionism, 11 J. FOOD L. & POL’Y 31,
35–36 (Spring 2015) (Montana, Kansas, North Dakota); Lewis Bollard,
Ag-Gag: The Unconstitutionality of Laws Restricting Undercover
Investigations on Farms, 42 Envtl. L. Rep. News & Analysis 10960,
10963-66 (Oct. 2012) (Iowa, Utah).
8 ANIMAL LEGAL DEFENSE FUND V. WASDEN
League Defense Fund and various other animal rights
organizations (collectively “ALDF”) urge us to uphold the
district court’s injunction against enforcement of the statute,
arguing that the law criminalizes whistleblower activity and
undercover investigative reporting—a form of speech that
has brought about important and widespread change to the
food industry, an arena at the forefront of public interest.
Our analysis is framed by the Supreme Court’s decision
in United States v. Alvarez, which addressed the First
Amendment and false speech. 567 U.S. 709 (2012). We
conclude that Idaho’s criminalization of misrepresentations
to enter a production facility, § 18-7042(1)(a), and ban on
audio and video recordings of a production facility’s
operations, § 18-7042(1)(d), cover protected speech under
the First Amendment and cannot survive constitutional
scrutiny. In contrast, in accord with Alvarez, Idaho’s
criminalization of misrepresentations to obtain records and
secure employment are not protected speech under the First
Amendment and do not violate the Equal Protection Clause.
§ 18-7042(1)(b)–(c). Thus, we affirm in part and reverse in
part the district court’s entry of summary judgment in favor
of ALDF and vacate in part its permanent injunction against
enforcement of the statute.
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.
ANIMAL LEGAL DEFENSE FUND V. WASDEN 9
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 Idaho Code § 18-7042. 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
facility by force, threat, misrepresentation or
trespass;
(b) Obtains records of an agricultural
production facility by force, threat,
misrepresentation or trespass;
10 ANIMAL LEGAL DEFENSE FUND V. WASDEN
(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
Idaho Code § 18-7042(1)(a)–(d).
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. § 18-7042(2)(a). The term “agricultural
5
The statute also criminalizes physical damage to an agricultural
production facility’s operations, Idaho Code § 18-7042(1)(e), but that
provision has not been challenged in this case.
6
In full, the law defines “agricultural production” to mean
“activities associated with the production of agricultural products for
food, fiber, fuel and other lawful uses,” including but not limited to:
“construction, expansion, use, maintenance and repair of an agricultural
production facility; preparing land for agricultural production; handling
or applying pesticides, herbicides or other chemicals, compounds or
substances labeled for insects, pests, crops, weeds, water or soil;
ANIMAL LEGAL DEFENSE FUND V. WASDEN 11
production facility” is broad and covers “any structure or
land, whether privately or publicly owned, leased or
operated, that is being used for agricultural production.” Id.§ 18-7042(2)(b).
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. § 18-7042(3). A person
convicted of this crime must pay restitution to the victim in
an amount of twice the damage resulting from violation of
the statute. Id. § 18-7042(4). This damages payment
includes a victim’s “economic loss[es].” Id. § 19-5304.
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
planting, irrigating, growing, fertilizing, harvesting or producing
agricultural, horticultural, floricultural and viticultural crops, fruits and
vegetable products, field grains, seeds, hay, sod and nursery stock, and
other plants, plant products, plant byproducts, plant waste and plant
compost; breeding, hatching, raising, producing, feeding and keeping
livestock, dairy animals, swine, furbearing animals, poultry, eggs, fish
and other aquatic species, and other animals, animal products and animal
byproducts, animal waste, animal compost, and bees, bee products and
bee byproducts; processing and packaging agricultural products,
including the processing and packaging of agricultural products into food
and other agricultural commodities; [and] manufacturing animal feed.”
Idaho Code § 18-7042(2)(a).
12 ANIMAL LEGAL DEFENSE FUND V. WASDEN
investigators who expose the industry to the “court of public
opinion,” which destroys farmers’ reputations, results in
death threats, and causes loss of customers.
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. Idaho Code
§ 18-7040(1). The Idaho Dairymen’s Association used this
interference with agricultural research law as the framework
for § 18-7041.
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
ANIMAL LEGAL DEFENSE FUND V. WASDEN 13
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.
7
ALDF also brought claims against Governor C.L. “Butch” Otter,
but the district court dismissed him as a defendant. His dismissal is not
challenged on appeal.
14 ANIMAL LEGAL DEFENSE FUND V. WASDEN
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 § 18-7042(1)(a)–(c) (the
“Misrepresentation Clauses”) criminalize speech protected
by the First Amendment because Idaho could not “show the
lies it seeks to prohibit cause any legally cognizable harm.”
The court explained that the regulation on audio and video
recordings under § 18-7042(1)(d) (the “Recordings Clause”)
covers speech protected by the First Amendment and
discriminates based on content because it criminalizes only
“recordings of the conduct of an agricultural production
facility’s operations.” The district court further reasoned
that subsections (c) (misrepresentation to gain employment)
and (d) (the Recordings Clause) discriminate on the basis of
viewpoint because they “burden speech critical of the
animal-agriculture industry.” Applying strict scrutiny to all
challenged provisions, the district court resolved that even if
the state’s interests in privacy and property were compelling,
the restrictions were neither narrowly tailored nor the least
restrictive means available to protect those interests.
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
ANIMAL LEGAL DEFENSE FUND V. WASDEN 15
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
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,
16 ANIMAL LEGAL DEFENSE FUND V. WASDEN
personnel, equipment, buildings, premises,
business interests or customers[.]
Idaho Code § 18-7042(1)(a)–(c) (emphasis added).
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.” U.S. Const., amend I. Our first task is
to determine whether the misrepresentations prohibited in
the Idaho statute constitute speech protected by the First
Amendment. See Cornelius v. NAACP Legal Def. Fund &
Educ. Fund, Inc., 473 U.S. 788, 797 (1985). If the
government’s actions do not implicate speech protected by
the First Amendment, we “need go no further.” Id.In Alvarez, the Supreme Court examined the Stolen
Valor Act, 18 U.S.C. § 704 (“the Act”), a statute
criminalizing false claims that the speaker had received the
Congressional Medal of Honor. 567 U.S. 709 (2012).
Justice Kennedy’s plurality opinion (joined by the Chief
Justice and Justices Ginsburg and Sotomayor), as well as
Justice Breyer’s concurring opinion (joined by Justice
Kagan), concluded that the Act’s flat prohibition of such lies
constituted an impermissible restriction on speech protected
by the First Amendment. Id. at 729–30 (plurality opinion);
id. at 739 (Breyer, J., concurring). In deciding that lying
about receiving the Medal of Honor, without more, is
protected speech, the plurality and concurrence “reject[ed]
ANIMAL LEGAL DEFENSE FUND V. WASDEN 17
the notion that false speech should be in a general category
that is presumptively unprotected.” Id. at 722 (plurality
opinion); accord id. at 731–32 (Breyer, J., concurring).
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.
8
The same is true of subsections (b) and (c); ALDF challenges only
the misrepresentation prongs. In its opening brief, Idaho limits the
definition of a “misrepresentation” to an affirmative misrepresentation—
not an omission: “[t]his means that the representations must be
affirmative; omissions are insufficient. And they must be knowingly
false. Mistakes or opinions will not support a prosecution.”
18 ANIMAL LEGAL DEFENSE FUND V. WASDEN
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 (plurality opinion). Unlike
lying to obtain records or gain employment—which are
associated with a material benefit to the speaker—lying to
gain entry merely allows the speaker to cross the threshold
of another’s property, including property that is generally
open to the public. The hazard of this subsection is that it
criminalizes innocent behavior, that the overbreadth of this
subsection’s coverage is staggering, and that the purpose of
the statute was, in large part, targeted at speech and
investigative journalists.
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
ANIMAL LEGAL DEFENSE FUND V. WASDEN 19
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
9
We disagree with the district court’s suggestion that the only harm
from gaining access to property by misrepresentation “would arise, say,
from the publication of a story about the facility.” Such reasoning is
problematic because it assumes, among other things, that a publication
about the facility will necessarily harm the facility. At issue here is the
speech to gain entry to the facility, not the journalistic creation or
speculative harm that may “arise” after entry. Focusing on such
speculative harm sweeps in too many scenarios in which a person
entering the property causes no harm to the property or its owner. This
approach also places a value judgment on the reporting itself and
undermines the First Amendment right to critique and criticize.
20 ANIMAL LEGAL DEFENSE FUND V. WASDEN
owner’s agent, upon the real property of another” but limits
its application to property posted with “No Trespassing”
signs that meet certain parameters. Idaho Code
§ 18-7008(9). Thus, even if the dissent is correct that the
teenager receives a license that would not otherwise have
been granted, since in some circumstances the teenager may
have entered the restaurant with no permission without
trespassing, he gains little to nothing from his
misrepresentation. 10
Two earlier cases involving investigative reporters and
trespass in the First Amendment context foreshadowed the
decision in Alvarez, albeit in slightly different scenarios.
The Fourth Circuit in Food Lion, Inc. v. Capital Cities/ABC,
Inc., 194 F.3d 505 (1999), and the Seventh Circuit in
Desnick v. American Broadcasting Companies, Inc., 44 F.3d
1345 (1995), examined whether plaintiffs in a civil action
could maintain a trespass claim against journalists for
misrepresenting their identities. Both courts invalidated the
trespass claim predicated on the misrepresentations because
“the entry was not invasive in the sense of infringing the kind
of interest of the plaintiffs that the law of trespass protects;
it was not an interference with the ownership or possession
of land.” Desnick, 44 F.3d at 1353; Food Lion, 194 F.3d at
518 (“[I]f we turned successful resume fraud into trespass,
we would not be protecting the interest underlying the tort of
trespass—the ownership and peaceable possession of
10
The dissent’s citation to Green v. Beaver State Contractors, Inc.,
472 P.2d 307, 307 (Idaho 1970) is misplaced. This is not the case of the
hapless teenager and has nothing to do with the First Amendment and
entry upon property. Rather, it is a civil contract matter and the
question—left unanswered—was whether there were any civil damages
for trespass by a contractor who traversed land without authorization.
ANIMAL LEGAL DEFENSE FUND V. WASDEN 21
land.”). 11 Put differently, “consent to an entry is often given
legal effect even though the entrant has intentions that if
known to the owner of the property would cause him for . . .
lawful reasons to revoke his consent” because that entry does
not infringe upon the specific interests trespass seeks to
protect. Desnick, 44 F.3d at 1351. This language is
prescient in its tracking of Alvarez’s reasoning: some lies
quite simply do not inflict any material or legal harm on the
deceived party. See Alvarez, 567 U.S. at 718–19 (plurality
opinion); see also id. at 736 (Breyer, J., concurring) (statutes
properly prohibiting false statements are those with
“limitations of context, or requirements of proof of injury”
to narrow the prohibition to “a subset of lies where specific
harm is more likely to occur” and not “where harm is
unlikely or the need for the prohibition is small.”).
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
11
On another claim, the Fourth Circuit determined that the reporters
“committed trespass by breaching their duty of loyalty” as employees of
Food Lion. Food Lion, 194 F.3d at 518. Idaho did not raise any similar
arguments here and, therefore, this portion of the Fourth Circuit’s
holding is inapposite to our decision.
22 ANIMAL LEGAL DEFENSE FUND V. WASDEN
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 prohibiting
misrepresentations is even more problematic. The focus of
the statute to avoid the “court of public opinion” and
treatment of investigative videos as “blackmail” cannot be
squared with a content-neutral trespass law.
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,
ANIMAL LEGAL DEFENSE FUND V. WASDEN 23
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 Idaho Code § 18-7011(1), whereas the penalty
under the agricultural protection provision, § 18-7042, could
be up to one year in prison, a fine not in excess of $5,000, or
both.
We are also unsettled by the sheer breadth of this
subsection given the definitions of “agricultural production
facility” and “agricultural production.” Id. § 18-7042(2)(a),
(b). Applying these definitions, the subsection reaches
misrepresentations not only in the context of a large-scale
dairy facility or cattle feedlot, but also grocery stores, garden
nurseries, restaurants that have an herb garden or grow their
own produce, llama farms that produce wool for weaving,
beekeepers, a chicken coop in the backyard, a field
producing crops for ethanol, and hardware stores, to name a
few. See Alvarez, 567 U.S. at 722 (plurality opinion)
(criticizing the Act for having “sweeping, quite
unprecedented reach”).
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
24 ANIMAL LEGAL DEFENSE FUND V. WASDEN
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. Idaho Code § 18-7042(3), (4). The same
can be said for a restaurant critic who goes undercover,
claiming to be a repeat customer in order to get a prime table
from which to review the restaurant’s food, service, and
ambiance. In these scenarios, the statute punishes speech
where there is no fraud, no gain, and no valuable
consideration.
The limitation that a misrepresentation must be
“knowing[]” does not eliminate the threat posed by this
subsection’s staggering reach. The fact that the subsection
regulates speech related to property far beyond a classic
agricultural facility would invariably result in the chilling of
lawful speech. Indeed, “a speaker might still be worried
about being prosecuted for a careless false statement, even
if he does not have the intent required to render him liable.”
Alvarez, 567 U.S. at 736 (Breyer, J., concurring) (applying
intermediate scrutiny).
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
ANIMAL LEGAL DEFENSE FUND V. WASDEN 25
“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. 18 U.S.C. § 704(b)
(2013) (emphasis added). Such a limitation would still
effectuate agricultural production facility owners’ property
rights while complying with Alvarez’s relatively
straightforward First Amendment requirements.
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
26 ANIMAL LEGAL DEFENSE FUND V. WASDEN
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
the subsections. Idaho explicitly invites this result in its
discussion of the statute’s severability clause, and ALDF’s
surgical challenge indirectly endorses this remedy. Under
Idaho law, an invalid portion of a statute may be severed
where “part of a statute . . . is unconstitutional and yet is not
an integral or indispensable part of the measure.” Voyles v.
City of Nampa, 548 P.2d 1217, 1220 (Idaho 1976). Because
the proscription on misrepresentations is neither integral nor
indispensable to the subsection’s goal of protecting property
rights, the offending term “misrepresentation” should be
stricken, leaving the remainder of the subsection intact. In
light of this resolution, we need not analyze subsection (a)
under the Equal Protection Clause.
ANIMAL LEGAL DEFENSE FUND V. WASDEN 27
B. Idaho Code § 18-7042(1)(b): Obtaining Records
by Misrepresentation
Subsection (b)—which criminalizes obtaining records of
an agricultural production facility by misrepresentation 12—
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 lawfully proscribed similar types of
conduct that infringe on property rights. For example, Idaho
criminalizes conversion, which involves “any distinct act of
dominion wrongfully exerted over another’s personal
property in denial or inconsistent with his rights therein.”
Wiseman v. Schaffer, 768 P.2d 800, 803 (Idaho 1989)
(citation omitted); see also Idaho Code §§ 18-2403(3),
18-7001(1). Idaho also criminalizes theft by false pretenses,
which involves “a wrongful taking, obtaining or withholding
of another’s property” by conduct constituting “obtaining
property, money or labor under false pretenses.” Idaho Code
§ 18-2403(2); State v. Larsen, 286 P.2d 646, 648 (Idaho
12
We read the statute to cover records obtained from the agricultural
production facility and not as implicating records obtained via Idaho’s
Public Records Act, Idaho Code § 74-101 et seq., or other lawful
avenues.
28 ANIMAL LEGAL DEFENSE FUND V. WASDEN
1955) (citation omitted) (“[a] false pretense may consist in
any act, word, symbol, or token calculated and intended to
deceive”). Larceny, which involves the “fraudulent
obtaining of personal property, and carrying that property
away with the intent permanently to deprive the owner
thereof,” is also prohibited. State v. Jesser, 501 P.2d 727,
736 & n.29 (Idaho 1972). Criminalizing the obtaining of
records by misrepresentation is one of a variety of Idaho
statutes that protect property rights. Obtaining 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. Additionally, obtaining records through
misrepresentation may also infringe on other rights by, for
example, exposing proprietary formulas, trade secrets, or
other confidential business information to unwanted parties.
See Idaho Code § 48-801 et seq. (prohibiting
misappropriation of trade secrets).
The legislative history illustrates how such conduct has
harmed, and threatens to harm, agricultural production
facility owners. For example, legislators expressed general
concern about damage to breeding papers, and one legislator
noted an instance in which the breeding papers of a mink
ranch were “tossed” into a “pile,” “damag[ing] the whole
operation.” The agricultural industry also expressed concern
about the theft of facility records, particularly when such
theft leads to the release of a facility’s proprietary and
confidential information, including divulging locations of
genetically engineered crops or valuable research documents
for sale to competitors. Although some legislators wanted
to silence investigative journalists reporting on the
agricultural industry, the full legislative history shows that a
ANIMAL LEGAL DEFENSE FUND V. WASDEN 29
legitimate purpose for enacting the subsection was to prevent
harm from damaged or stolen records.
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
13
Because we determine that subsections (b) and (c) do not burden
speech protected by the First Amendment, the subsections do not
discriminate on the basis of the fundamental right to speech.
30 ANIMAL LEGAL DEFENSE FUND V. WASDEN
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 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) (emphasis
added); Moreno, 413 U.S. at 534.
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 § 18-
7042 is to protect agricultural production facilities from
interference by wrongful conduct. As noted, the legislative
history relevant to subsection (b) describes situations in
which agricultural production facilities have been, or may
be, harmed as a result of a misrepresentation leading to the
acquisition of records. Idaho’s desire to protect against harm
relating to an agricultural production facility’s most
sensitive information—affecting both property rights and
privacy interests—is a legitimate government interest. It
also bears noting that the penalty provisions for falsely
obtaining records under this statute are in line with the
ANIMAL LEGAL DEFENSE FUND V. WASDEN 31
penalties in Idaho’s other statutes relating to records and
property offenses. See, e.g., Idaho Code §§ 18-2403(2)(d),
18-2407, 18-2408 (theft by false promise); 18-7001
(malicious injury to property); 48-803 (misappropriation of
trade secrets). Subsection (b) does not offend the Equal
Protection Clause because it does not rest exclusively on an
“irrational prejudice” against journalists and activists.
Cleburne, 473 U.S. at 450.
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
32 ANIMAL LEGAL DEFENSE FUND V. WASDEN
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., 108 P.3d 380, 389–90 (Idaho 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 investigations is not to ‘secure moneys
or other valuable considerations’ for the investigator, but
rather to expose threats to the public,” ALDF ignores that the
Supreme Court singled out offers of employment and that
these undercover investigators are nonetheless paid by the
agricultural production facility as part of their employment.
Of course, this does not mean that every investigative
reporter hired under false pretenses intends to harm the
employer. That is a critical element that requires proof.
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
ANIMAL LEGAL DEFENSE FUND V. WASDEN 33
resulting from the violation” of the statute. Idaho Code
§§ 18-7042(4), 19-5304. Restitution is made for the
“economic loss” to the victim. Idaho Code § 19-5304(1)(a).
This includes “the value of property taken, destroyed,
broken, or otherwise harmed, lost wages, and direct out-of-
pocket losses or expenses, such as medical expenses
resulting from the criminal conduct.” Id. It does not include
“less tangible damage such as pain and suffering, wrongful
death or emotional distress.” Id.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, 292
P.3d 273, 280 (Idaho 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).
14
On a more basic level, we cannot see how the restitution provision
is inevitably viewpoint based. Restitution is pegged to economic loss,
not to the view expressed, which could be a positive puff piece or a
negative critique. The issue is documented loss, not viewpoint.
34 ANIMAL LEGAL DEFENSE FUND V. WASDEN
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 implicitly recognized that a
government interest exists in restricting such speech.
Alvarez, 567 U.S. at 723. Thus, this subsection has a
legitimate governmental purpose beyond an “irrational
prejudice” against journalists and activists. City of
Cleburne, 473 U.S. at 450.
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.” Idaho Code
§ 18-7042(1)(d). The Recordings Clause regulates speech
protected by the First Amendment and is a classic example
of a content-based restriction that cannot survive strict
scrutiny.
ANIMAL LEGAL DEFENSE FUND V. WASDEN 35
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 (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 Amendment 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
36 ANIMAL LEGAL DEFENSE FUND V. WASDEN
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 also protect the act of creating that material.”)
(emphasis added). Because the recording process is itself
expressive and is “inextricably intertwined” with the
resulting recording, the creation of audiovisual recordings is
speech entitled to First Amendment protection as purely
expressive activity. See Anderson, 621 F.3d at 1062.
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.”
ANIMAL LEGAL DEFENSE FUND V. WASDEN 37
Reed v. Town of Gilbert, 135 S. Ct. 2218, 2227 (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, because 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, 134 S. Ct. 2518, 2531
(2014).
38 ANIMAL LEGAL DEFENSE FUND V. WASDEN
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 (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 (“[T]hat a regulation
of speech may be impermissibly underinclusive is firmly
grounded in basic First Amendment principles.”). Why the
making of audio and video recordings of operations would
implicate property or privacy harms, but photographs of the
same content would not, is a mystery. This distinction defies
the old adage that “a picture is worth a thousand words.”
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
ANIMAL LEGAL DEFENSE FUND V. WASDEN 39
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. Idaho Code § 48-801 et seq.
(prohibiting misappropriation of trade secrets); Taylor v.
K.T.V.B., Inc., 525 P.2d 984, 985 (Idaho 1974) (outlining the
invasion of privacy torts). To the extent the legislators
expressed concern that fabricated recordings of animal abuse
would invade privacy rights, the victims can turn to
defamation actions for recourse. Even still, as Alvarez points
out, “[t]he remedy for speech that is false is speech that is
true”—and not, as Idaho would like, the suppression of that
speech. 567 U.S. at 727.
40 ANIMAL LEGAL DEFENSE FUND V. WASDEN
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 §§ 18-7042(1)(a) and (d). We
reverse the district court’s grant of summary judgment with
respect to §§ 18-7042(1)(b) and (c). The permanent
injunction should be modified accordingly.
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 entry 1
upon land is not a “legally cognizable harm” where it
“merely allows the speaker to cross the threshold of
another’s property.” But as a matter of the applicable Idaho
law, such an unconsented entry constitutes a common law
trespass, which is a legally cognizable harm—one from
which damages are presumed to flow naturally. Taysom v.
1
Fraud or misrepresentation vitiates consent. Green v. Beaver State
Contractors, Inc., 472 P.2d 307, 307 (Idaho 1970) (finding trespass
where defendant obtained permission to cross plaintiff’s land by
misrepresentation); Restatement (Second) of Torts § 173 (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.”).
ANIMAL LEGAL DEFENSE FUND V. WASDEN 41
Taysom, 349 P.2d 556, 560 (Idaho 1960) (“Nominal damage
need not be proved, but naturally flows from a wrongful
entry.”).
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 individual
in the universe.” 2 William Blackstone, COMMENTARIES ON
THE LAWS OF ENGLAND *2. For centuries, Anglo-American
2
In a society governed by the Rule of Law, exceptions to the right
of the owner to exclusive possession of his land can be made by due
process of law, such as court orders and official acts.
3
The majority cites Desnick v. Am. Broad. Cos., Inc., 44 F.3d 1345(7th Cir. 1995), and Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d
505, 517 (4th Cir. 1999)).
42 ANIMAL LEGAL DEFENSE FUND V. WASDEN
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, 18 U.S.C. § 704, a
federal statute which made criminal false claims that the
speaker had received the Congressional Medal of Honor.
567 U.S. 709 (2012). At the outset, it is important to note
that subsection (a) of the Idaho statute at issue in this case
differs from the version of the Stolen Valor Act at issue in
Alvarez in at least one crucial aspect: Whereas the Stolen
Valor Act prohibited the act of lying about a particular
subject (receipt of military decorations or medals), 18
U.S.C. § 704, subsection (a) of Idaho’s statute prohibits the
act of entering a particular type of property (“agricultural
production facilities”) by particular means (including
ANIMAL LEGAL DEFENSE FUND V. WASDEN 43
“misrepresentation”), Idaho Code § 18-7042(1)(a). 4 By the
plain meaning of the statute, liability attaches only to those
who “enter[]” an agricultural production facility through
lying, not to any and all who tell lies to agricultural facility
owners or to the public about such owners. Id. In other
words, subsection (a) 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
4
Idaho Code § 18-7042 provides that a person commits the
misdemeanor crime of “interference with agricultural production” if the
person “knowingly” “(a) [i]s not employed by an agricultural production
facility and enters an agricultural production facility by force, threat,
misrepresentation, or trespass” (emphasis added).
5
In Alvarez, the Supreme Court explicitly distinguished cases of
“defamation, fraud, or some other legally cognizable harm associated
with a false statement” from cases that confront “a measure, like the
Stolen Valor Act, that targets falsity and nothing more.” 567 U.S. at 719(emphasis added).
6
“One who intentionally enters land in the possession of another is
subject to liability to the possessor for a trespass, although his presence
on the land causes no harm to the land, its possessor, or to any thing or
person in whose security the possessor has a legally protected interest.”
Restatement (Second) of Torts § 163 (1965) (emphasis added). The term
“enters land” is defined “to include, not only coming upon land, but also
remaining on it, and, in addition, to include the presence upon the land
of a third person or thing which the actor has caused to be or to remain
there.” Id. § 158.
44 ANIMAL LEGAL DEFENSE FUND V. WASDEN
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 if employing language, is not ‘an act of
communication’ that transforms conduct into First
Amendment speech.” (quoting Nevada Comm’n on Ethics v.
Carrigan, 564 U.S. 117, 126–27 (2011))). 9 Here, as in
7
For example, in Idaho “[t]heft includes a wrongful taking,
obtaining or withholding of another’s property . . . committed . . . [b]y
deception . . . [or] [b]y conduct heretofore defined or known as . . .
common law larceny by trick . . . . [or] obtaining property, money or
labor under false pretenses.” Idaho Code § 18-2403; see also 18 U.S.C.
§ 1708 (“Whoever . . . by fraud or deception obtains . . . from or out of
any mail, post office, or station thereof, letter box, mail receptacle . . . or
other authorized depository . . . any article or thing contained therein . . .
[s]hall be fined under this title or imprisoned not more than five years,
or both.”).
8
In Pickup, the plaintiffs brought a First Amendment challenge to
California Senate Bill 1172 (“SB 1172”), which banned state-licensed
mental health providers from engaging in “sexual orientation change
efforts” with patients under 18 years of age. 740 F.3d at 1221. The
district court granted a preliminary injunction enjoining enforcement of
the law and California appealed. Id. at 1222. This court engaged in
plenary review, id., upheld SB 1172, id. at 1236, and reversed the grant
of the preliminary injunction, id. The panel found that SB 1172 regulated
professional conduct, rather than speech, by banning a certain form of
treatment, and so was “subject to deferential review just as are other
regulations of the practice of medicine.” Id. at 1229–31.
9
In Carrigan, the petitioner, the Nevada Commission on Ethics,
investigated respondent Carrigan under Nevada’s “Ethics in
Government” law, which required public officials to recuse themselves
ANIMAL LEGAL DEFENSE FUND V. WASDEN 45
Pickup and Carrigan, a common law trespass “symbolizes
nothing.” It seems plain to me that Idaho’s political
branches could enact a general criminal trespass law that
includes in its definition of “trespass” entry obtained by
fraud or misrepresentation. Cf. Rowe v. City of Pocatello,
218 P.2d 695, 701 (Idaho 1950) (“[T]he city could ban the
practice of uninvited intrusion upon private residences . . .
The city could . . . merely declare it a misdemeanor.”); Idaho
Code § 18-2403 (prohibiting theft by deception, trick, or
false pretenses). If that is so, I see nothing to prevent Idaho
legislators from extending such protection only to certain
types of properties, such as nuclear facilities, see 10 C.F.R.
§ 160.3 (prohibiting trespass on “facilities, installations, and
real property subject to the jurisdiction . . . of the Nuclear
Regulatory Commission.”). The relative importance of
nuclear facilities and “agricultural production facilities” is in
the eyes of the beholder, or, in this case, the Idaho state
legislature.
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
from voting on or advocating a vote on matters in which a reasonable
person would be materially affected by their private interests. 564 U.S.
at 119–20. The Commission concluded that Carrigan violated the law
by voting to approve a hotel/casino project in which his campaign
manager was involved. Id. at 120. The Nevada Supreme Court found
the ethics law overbroad, and the U.S. Supreme Court granted certiorari.
Id. at 121. The Court held that a legislator’s vote is “nonsymbolic
conduct” and reversed. Id. at 127, 129. “[T]he act of voting symbolizes
nothing. It discloses, to be sure, that the legislator wishes (for whatever
reason) that the proposition on the floor be adopted, just as a physical
assault discloses that the attacker dislikes the victim. But neither . . . is
an act of communication.” Id. at 126–27.
46 ANIMAL LEGAL DEFENSE FUND V. WASDEN
“material advantage,” or if it inflicts a “legally cognizable
harm.” Alvarez, 567 U.S. at 719, 723 (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, 125 P. 208, 212 (Idaho 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, 916 P.2d 1264, 1274 (Idaho
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)); Idaho Code § 22-2402 (defining “landowner” to
mean “[a] person with an interest in a parcel of land such that
the person has the right to exclude others from possession of
the parcel”).
The majority’s proposal to count as a “legally cognizable
harm” only those trespasses that violate Idaho’s criminal
ANIMAL LEGAL DEFENSE FUND V. WASDEN 47
code is thus foreclosed by the contrary substantive law of
Idaho and other common law jurisdictions. “One who
intentionally enters land in the possession of another is
subject to liability to the possessor for a trespass, although
his presence on the land causes no harm to the land, its
possessor, or to any thing or person in whose security the
possessor has a legally protected interest.” Restatement
(Second) of Torts § 163 (1965). To vindicate his right of
exclusive dominion, a landowner may recover nominal
damages for trespass—even absent evidence of any physical
or pecuniary injury—because “[n]ominal damage need not
be proved, but naturally flows from a wrongful entry.”
Taysom v. Taysom, 349 P.2d 556, 560 (Idaho 1960); see also
Nelson v. Holdaway Land & Cattle Co., 691 P.2d 796, 799
(Idaho Ct. App. 1984) (owner was entitled to recover
nominal damages for trespass “even though no actual
damages were proven”). Furthermore, a landowner has a
general right to exclude others from his lands by reasonable
force, under certain circumstances. Restatement (Second) of
Torts § 77 (1965). Generally speaking, a landowner can use
such reasonable force to defend “his exclusive possession of
land” from others for any reason at all, even “personal
dislike or hostility to the other.” See id. cmt. c; Rowe v. City
of Pocatello, 218 P.2d 695, 700 (Idaho 1950) (“A man’s
house is still his castle. He may exclude whom he chooses.”).
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. 472 P.2d 307, 307
(Idaho 1970). The contractor offered to pay $1 plus 5 cents
“per yard of rock removed” from Green’s land, and she
48 ANIMAL LEGAL DEFENSE FUND V. WASDEN
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.,
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. Id. at 157.
The “only alternative” was to haul the mobile home through
a sharply-curved private road which was covered in seven
feet of snow at the time. Id. Understandably, Steenberg saw
a material advantage in “merely . . . cross[ing] the threshold”
of the Jacques’ property. The Jacques refused permission to
haul the mobile home across their land, but Steenberg did so
anyway. Id. at 157–58. The jury awarded nominal damages
of $1 and punitive damages of $100,000, id. at 158, and the
Supreme Court of Wisconsin, upheld the award in full. Id.
at 166. Not only did the jury properly award nominal
damages because “[t]he law infers some damage from every
ANIMAL LEGAL DEFENSE FUND V. WASDEN 49
direct entry upon the land of another,” id. at 160 (quoting
Prosser and Keeton on Torts, § 13 (5th ed. 1984)), the jury
also properly awarded punitive damages to vindicate the
strong interest of individual landowners and of society in
protecting private property from trespass, id.
The Idaho trespass statute cited in the majority opinion
is not relevant. The majority cites Idaho Code § 18-7008(9)
for the proposition that only lands posted with “No
Trespassing” signs can be trespassed upon under Idaho law.
But while the cited statute so limits actions seeking criminal
penalties for “willful and intentional[]” trespass, it does not
otherwise override or eliminate common law trespass in
Idaho. 10 Nor does Idaho Code § 6-202, which provides for
treble damages in civil actions for “willful and intentional[]”
trespass and also requires posted “No Trespassing” signs:
[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
10
“The common law of England, so far as it is not repugnant to, or
inconsistent with, the constitution or laws of the United States, in all
cases not provided for in these compiled laws, is the rule of decision in
all courts of this state.” Idaho Code § 73-116. “[C]hanges in the
common law by the adoption of a statute may not be presumed, nor may
such changes be accomplished by legislation of doubtful implication.
Indus. Indem. Co. v. Columbia Basin Steel & Iron Inc., 93 Idaho 719,
723 (Idaho 1970).
50 ANIMAL LEGAL DEFENSE FUND V. WASDEN
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., 115 P. 22 (Idaho 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
The majority also argues, based on two out-of-circuit
cases, that not all misrepresentations necessarily vitiate
consent to entry. The majority cites Desnick v. Am. Broad.
Cos., Inc., 44 F.3d 1345 (7th Cir. 1995), and Food Lion, Inc.
v. Capital Cities/ABC, Inc., 194 F.3d 505, 517 (4th Cir.
1999). Both Desnick and Food Lion note, in discussing the
common law of various other jurisdictions, that there is no
11
In Menasha, the plaintiff alleged that the defendant went on its
lands and cut and removed timber. 115 P. at 23. The trial court awarded
treble damages and the defendant appealed. Id. at 24. The Supreme
Court of Idaho reversed the award of statutory treble damages. Id. at 24–
25. The court read a willfulness requirement into the statute and reversed
the award because there was no allegation that the trespass was willful.
Id. at 24–25. In so doing, however, the court noted that the complaint
was “good as an action at common law, entitling the plaintiff to his actual
damage,” but simply did not meet the statutory requirements for trebled
damages. Id. at 25. Rather, the court concluded that “the damages
recoverable at common law would afford an adequate reparation.” Id.The court therefore reduced the judgment to provide only actual damages
and affirmed the judgment, so modified. Id.12
Nowhere does Alvarez hold that a “legally cognizable harm” must
also be a crime. In fact, Alvarez points to classic common law injuries—
“defamation,” “fraud,” and “invasion of privacy”—as examples of
“legally cognizable harms.” 567 U.S. at 719.
ANIMAL LEGAL DEFENSE FUND V. WASDEN 51
consensus on this issue. Food Lion, Inc., 194 F.3d at 517(“[T]he various jurisdictions and authorities in this country
are not of one mind in dealing with the issue.”); Desnick, 44
F.3d at 1352–53 (noting diversity of results in entry-by-
misrepresentation cases and proposing a new rule—of
undisclosed origin—to reconcile them); see also
Restatement (Second) of Torts § 173 cmt. b (1965)
(providing that “[a] conscious misrepresentation as to the
purpose for which admittance to the land is sought, may be
a fraudulent misrepresentation of a material fact” which
vitiates consent pursuant to Restatement (Second) of Torts
§ 892B). As relevant here, however, the law of Idaho is
contrary to the Desnick and Food Lion decisions. See
Beaver State Contractors, Inc., 472 P.2d at 310 (finding
trespass where defendant entered and crossed the owner’s
property by misrepresentation). Even if entries such as those
at issue in Desnick or Food Lion (or Beaver State) neither
damage the premises nor “disrupt” the owner’s activities
thereon, wrongful entry is nonetheless a “legally cognizable
harm” per se. Taysom, 349 P.2d at 560 (“Nominal damage
. . . naturally flows from a wrongful entry.”).
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 (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, 501 P.2d 727, 737 n.29 (Idaho 1972) (“It has long
been settled that fraud vitiates the consent of the victim to
the taking of his property by agreement, and that,
52 ANIMAL LEGAL DEFENSE FUND V. WASDEN
consequently, the taking is a constructive trespass upon
possession . . . .”); Idaho Code § 18-2403 (prohibiting theft
by deception, trick, or false pretenses). If the problem with
subsection (a) is that it enacts something different from the
substantive law of trespass advocated by a Seventh Circuit
or Fourth Circuit panel, any suggestion that those panels
have hit upon a “better rule” should be directed to the Idaho
legislature. It is Idaho law that governs what constitutes
valid consent for a license sufficient to avoid a trespass on
Idaho land.
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 he would not have
pursued but for the deceitful conduct, and (6) trademark
infringement statutes are focused on infringement which
causes confusion among consumers about the source of a
product, and thereby dilutes the value of a trademark.
Alvarez, 567 U.S. at 734–36 (Breyer, J., concurring). The
“specific harm” requirement thus mandates that a
prohibition on lies be limited to or “focused on” lies which
ANIMAL LEGAL DEFENSE FUND V. WASDEN 53
are “more likely” to cause a discrete and identifiable type of
harm. That is, a generalized prohibition on telling lies about
consumer products is overbroad, while a prohibition on lies
which are likely to trick consumers into buying a product
they would not otherwise buy is not. Unlike the Stolen Valor
Act, subsection (a) is limited to lies which are likely to cause
a specific harm: invasion of and onto land, or the harm to
property owners’ right to exclude others. In fact, in this
analysis, subsection (a) is even better than Justice Breyer’s
trademark infringement and impersonation examples
because the specific harm must occur for liability to attach,
rather than just be “more likely” to occur.
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, 554 P.2d 948, 953 (Idaho 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
13
Because the majority does not explain how it reaches this
conclusion, I assume it is my colleagues’ own appraisal of the
restaurant’s menu.
54 ANIMAL LEGAL DEFENSE FUND V. WASDEN
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 hoodwinking 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 advantage 16
that he did not have before consent was given. If nothing
else, he gains a suspension of the owner’s right to expel him
from the restaurant by force. See Restatement (Second) of
Torts § 77 (1965).
The majority’s restaurant analogy merely evades the
crucial inquiries under Alvarez. First, “entry alone” is a
14
Material: “1. of matter; of substance . . . physical: a material object
. . . 2. a. of the body or bodily needs, satisfactions . . . corporeal . . . .”
MATERIAL, Webster’s New World College Dictionary (5th ed. 2014).
15
Gain: “1. An increase; addition . . . 2. the act of getting something
. . . .” GAIN, Webster’s New World College Dictionary (5th ed. 2014).
16
Furthermore, as an empirical matter, it is not self-evidently true
that interfering only with the right to exclude does not appropriate
anything of material value. See Jonathan Klick & Gideon
Parchomovsky, The Value of the Right to Exclude: An Empirical
Assessment, 165 U. Pa. L. Rev. 917 (2017) (finding, based on an
empirical analysis of the effect of legislation that recognized a “right to
roam” in England and Wales on property values, that “even so-called
slight intrusions on owners’ exclusion right in favor of more public
access . . . come at a real cost to owners”).
ANIMAL LEGAL DEFENSE FUND V. WASDEN 55
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 (plurality opinion). 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 47–48. 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 43.
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
56 ANIMAL LEGAL DEFENSE FUND V. WASDEN
$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.