U.S. Tenth Circuit - The FindLaw 10th Circuit Court of Appeals Opinion Summaries Blog

Court: 'Ag Gag' Laws Challenge Free Speech

Sometime in profane history, a judge said there is no such thing as a little pregnant.

The U.S. Tenth Circuit Court of Appeals said something like that in Western Watersheds Project v. Michael. It had nothing to do with being pregnant, but everything to do with going beyond the point of no return.

The plaintiffs sued to invalidate Wyoming laws that penalized environmentalists for trespassing on private property to discover and report water pollution on public lands. The appeals court said the laws impermissibly crossed the line against free speech, and must face constitutional scrutiny.

"The fact that one aspect of the challenged statutes concerns private property does not defeat the need for First Amendment scrutiny," the court said.

"Ag Gag"

In 2015, Wyoming joined other western states in enacting "ag gag" laws. The laws prohibited people from entering "open land for the purpose of collecting resource data" without permission from the owner.

They were like other trespass laws, but with harsher penalties. A first offense brought a maximum one-year sentence and a $1,000 fine; second timers faced a minimum of ten days up to one year, plus a $5,000 fine.

Western Watersheds Project, joined by other advocacy organizations, challenged the Wyoming statutes. They claimed free speech and other federal protections.

After a battle of motions and legislative amendments, the trial court ruled against the plaintiffs. The judge said that the constitution does not give trespassers a free pass to enter private property.

Free Speech

The Tenth Circuit disagreed.

"We conclude that plaintiffs' collection of resource data constitutes the protected creation of speech," Judge Carlos Lucero wrote.

The unanimous panel did not strike down the statutes, however. Instead, the court reversed and remanded for the trial judge to determine the level of constitutional scrutiny to apply and whether the statutes survive the appropriate review.

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