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First Amendment

Animal Legal Defense Fund v. Reynolds

Eighth Circuit Upholds Law Criminalizing Access to Agricultural Production Facilities Under False Pretenses

In United States v. Alvarez,1×1. 567 U.S. 709 (2012). a fractured Court invalidated the Stolen Valor Act of 20052×2. 18 U.S.C. § 704 (2006), invalidated by Alvarez, 567 U.S. 709. — prohibiting any person from “falsely represent[ing] himself or herself” as having “been awarded any [military] decoration or medal” — on First Amendment grounds.3×3. Alvarez, 567 U.S. at 715–16 (plurality opinion) (quoting 18 U.S.C. § 704(b)). “[F]alse speech,” a plurality of the Court declared, is not “a general category” of its own, “presumptively unprotected.”4×4. Id. at 722. In Alvarez’s wake, however, lower courts have struggled to figure out just which lies the First Amendment protects.5×5. Must a false impersonation statute, for example, include a requirement that the mimic intend to deceive others? Compare United States v. Chappell, 691 F.3d 388, 396–99 (4th Cir. 2012) (upholding a false impersonation statute without such a requirement), with United States v. Bonin, 932 F.3d 523, 533–36 (7th Cir. 2019) (upholding a false impersonation statute but only on the basis that it contained such a requirement). Recently, in Animal Legal Defense Fund v. Reynolds6×6. 8 F.4th 781 (8th Cir. 2021). (ALDF), the Eighth Circuit read Alvarez to permit an Iowa statutory provision that criminalizes gaining access to a farm under “false pretenses,”7×7. Id. at 785 (quoting Iowa Code § 717A.3A(1) (2021)); see id. at 785–86. splitting with the Ninth Circuit, which invalidated an almost identical provision in 2018.8×8. See Animal Legal Def. Fund v. Wasden, 878 F.3d 1184, 1194–99 (9th Cir. 2018) (invalidating an Idaho statute that criminalized gaining access to farmland “by . . . misrepresentation,” id. at 1194 (quoting Idaho Code § 18-7042(1)(a) (2021))). The panel’s tidy holding — that trespass is a “legally cognizable harm,” and therefore any lies associated with it can be safely proscribed9×9. ALDF, 8 F.4th at 786 (quoting Alvarez, 567 U.S. at 719 (plurality opinion)). — ignored a far messier question: whether the proscribed conduct constitutes trespass at all. Based on early and contemporary common law, the answer is not straightforward. By ignoring this issue, the panel missed the statute’s overbreadth.

In 2012, in response to undercover investigations by animal rights activists on private farmland,10×10. For a paradigmatic example, see Anne-Marie Dorning, Iowa Pig Farm Filmed, Accused of Animal Abuse, ABC News (June 29, 2011, 9:29 AM), https://abcnews.go.com/Business/iowa-pig-farm-filmed-accused-animal-abuse/story?id=13956009 [https://perma.cc/VEM2-KGPX], which describes an undercover video taken by a Mercy for Animals investigator of “[s]mall piglets being hurled to a concrete floor.” Id. And for a paradigmatic response, see Iowa Approves First Ag Protection Law, Nat’l Hog Farmer (Mar. 2, 2012), https://nationalhogfarmer.com/business/iowa-approves-first-ag-protection-law [https://perma.cc/F7UK-HHXP], in which the legislative sponsor of House File 589 (H.F. 589) describes the bill’s goal as “send[ing] a message that we prize agriculture in Iowa and it is a commodity that shouldn’t be diminished by extremist vegans.” Id. the Iowa General Assembly passed House File 589 (H.F. 589), criminalizing “agricultural production facility fraud.”11×11. Act of Mar. 2, 2012, ch. 1005, 2012 Iowa Acts 5 (codified at Iowa Code § 717A). To commit the offense, a person must either (1) “[o]btain[] access to an agricultural production facility by false pretenses” (the “access provision”) or (2) knowingly “[m]ake[] a false statement . . . as part of an application” to be hired at such a facility, “with an intent to commit an act not authorized by [the facility’s] owner” (the “employment provision”).12×12. Iowa Code § 717A.3A(1) (2021). A first violation is punishable by a fine and up to a year in prison, id. § 903.1(1), and any subsequent violation is punishable by a fine and up to two years in prison, id. § 903.1(2). In 2017, five years after H.F. 589’s enactment, several animal rights groups sued for declaratory and injunctive relief, alleging that the law violated the First Amendment.13×13. See Civil Rights Complaint ¶¶ 115–48, Animal Legal Def. Fund v. Reynolds, 353 F. Supp. 3d 812, 827 (S.D. Iowa 2019) (No. 17-cv-00362). The plaintiffs also alleged that H.F. 589 violated the Fourteenth Amendment’s Equal Protection and Due Process Clauses. Id. ¶¶ 149–56.

The district court granted the plaintiffs’ motion for summary judgment and denied Iowa’s cross-motion.14×14. Animal Legal Def. Fund (ALDF II), 353 F. Supp. 3d at 827. In a prior order, Senior Judge Gritzner granted in part Iowa’s motion to dismiss, dismissing the plaintiffs’ equal protection claims. See Animal Legal Def. Fund v. Reynolds (ALDF I), 297 F. Supp. 3d 901, 928–29 (S.D. Iowa 2018). Senior Judge Gritzner proceeded in “three stages.”15×15. ALDF II, 353 F. Supp. 3d at 821. First, he held that H.F. 589 implicates protected speech.16×16. Id. at 821–22. H.F. 589 implicates speech, as it cannot be violated “without engaging in speech,” id. (emphasis omitted) (quoting ALDF I, 297 F. Supp. 3d at 918), and that speech is protected, as it does not “cause a ‘legally cognizable harm’ or provide ‘material gain’ to the speaker,” id. at 822 (quoting United States v. Alvarez, 567 U.S. 709, 719, 723 (2012) (plurality opinion)). Second, he noted that H.F. 589, as a content-based restriction on speech, would ordinarily be subject to strict scrutiny.17×17. Id. at 822. H.F. 589 is content based, as it cannot be enforced without reference to the truthfulness of the content of individuals’ statements. See id. However, given the Court’s “fragmented” decision in Alvarez — in which the plurality applied strict scrutiny, and a concurrence in the judgment applied only intermediate scrutiny — he acknowledged that the “legal framework for analyzing regulations that proscribe false speech,” like H.F. 589, is “uncertain.”18×18. Id. at 823. But he found no need to settle the question of which opinion in Alvarez controls, as, third, he held that H.F. 589 satisfies neither strict nor intermediate scrutiny.19×19. See id. at 824–27. As to strict scrutiny, the state’s interests in protecting “private property and biosecurity” were not “compelling,” id. at 824 — as there was no evidence that the law was “actually necessary to protect perceived harms,” id. at 825 — and even if they were, H.F. 589 was not “narrowly tailored” to achieve either, id. at 824. And because it was “so broad in its scope” — “criminaliz[ing] speech that inflicts no ‘specific harm’” — it also failed intermediate scrutiny. Id. at 827 (quoting Animal Legal Def. Fund v. Wasden, 878 F.3d 1184, 1198 (9th Cir. 2018)). In a subsequent order, he permanently enjoined enforcement of the law.20×20. Animal Legal Def. Fund v. Reynolds (ALDF III), No. 17-cv-00362, 2019 WL 1493717, at *3 (S.D. Iowa Feb. 14, 2019).

The Eighth Circuit affirmed in part, reversed in part, vacated the injunction in part, and remanded.21×21. ALDF, 8 F.4th at 788. Writing for the panel, Judge Colloton22×22. Judge Colloton was joined in full by Judge Grasz and in part by Judge Gruender. upheld the access provision and invalidated the employment provision.23×23. See ALDF, 8 F.4th at 786–87. Agreeing with the district court, he found that each provision regulates speech based on content.24×24. See id. at 784. As the content distinction at issue hinged on the speech’s falsity, he too turned to Alvarez.25×25. Id. at 784–85. The challenge, however, was how to interpret the split in Alvarez itself. As neither opinion was “a logical subset”26×26. Id. at 785. of the other, neither controlled under Marks v. United States.27×27. 430 U.S. 188 (1977). Instead, the court resolved to “bear in mind the reasoning of the various opinions” in considering the constitutionality of H.F. 589, even if Alvarez’s “only binding aspect” was its result.28×28. ALDF, 8 F.4th at 785.

The court then considered the access provision. In the court’s view, the “rule in light of Alvarez is that intentionally false speech undertaken to accomplish a legally cognizable harm may be proscribed without violating the First Amendment.”29×29. Id. at 786. As the access provision prohibits only lies that cause such a harm — “namely, trespass to private property . . . [from which] ‘the law [always] infers some damage’” — the First Amendment is not implicated at all.30×30. Id. (quoting Nichols v. City of Evansdale, 687 N.W.2d 562, 573 (Iowa 2004)). Judge Colloton thus rejected the district court’s view that the “nominal damage” recoverable in civil trespass actions is “damage in name only” and not a legally cognizable harm. Id. (quoting ALDF I, 297 F. Supp. 3d 901, 922 (S.D. Iowa 2018)).

The employment provision, on the other hand, “sweeps more broadly.”31×31. Id. at 787. Unlike the access provision — which proscribes only material misrepresentations — the employment provision criminalizes even “immaterial falsehoods.”32×32. Id.; see id. at 788. As lies “that are not capable of influencing an offer of employment” do not cause a legally cognizable harm or fit within the exception carved out by the Alvarez plurality, the employment provision is subject to First Amendment scrutiny.33×33. Id. at 787; see id. (referencing the exception for “false claims . . . made to . . . secure [an] offer[] of employment” (emphasis added) (quoting United States v. Alvarez, 567 U.S. 709, 723 (2012) (plurality opinion))). Under either strict or intermediate scrutiny, it fails: its scope is “too broad” and “less restrictive means” are too readily available.34×34. Id.

Judge Grasz filed a brief concurrence, noting his “hesistan[cy]” in upholding the access provision “[a]t a time in history when a cloud of censorship appears to be descending.”35×35. Id. at 788 (Grasz, J., concurring).

Judge Gruender concurred in part, as to the section of the court’s opinion upholding the access provision, and dissented in part, as to the court’s invalidation of the employment provision and its Marks analysis.36×36. Id. at 789 (Gruender, J., concurring in part and dissenting in part). He addressed Marks first. Like the court, he agreed that neither Alvarez opinion “is a logical subset of the other,” but unlike the court, he would not have stopped there.37×37. Id. (citing id. at 785 (majority opinion)). Instead, he would have evaluated Alvarez’s reach using two other tests: deciphering the “opinion that offers the least change to the law,”38×38. Id. at 790 (quoting United States v. Cundiff, 555 F.3d 200, 209 (6th Cir. 2009)). and assessing the outcome in ALDF “that would have commanded the votes of any five justices of the [Alvarez] Court, including any dissenters.”39×39. Id. (citing United States v. Bailey, 571 F.3d 791, 799 (8th Cir. 2009)). Both pointed to the plurality.40×40. See id. at 791. Judge Gruender dismissed a third option — following the opinion in Alvarez that “would hold the fewest statutes unconstitutional” — as impractical to apply here, given that the competing opinions disagreed on two axes: first, the appropriate tier of scrutiny, and second, how many laws that scrutiny applies to. Id. at 790 (quoting Coe v. Melahn, 958 F.2d 223, 225 (8th Cir. 1992)).

Guided, then, by the Alvarez plurality, Judge Gruender turned to the access provision. Though he agreed with the panel that the provision is constitutional, he wrote separately to describe his view of what constitutes a “legally cognizable harm”: specifically, “the kind of injury that [would have] supported standing . . . when the First Amendment was ratified in 1791.”41×41. Id. at 792. As the access provision “is a trespass law,” and as such laws predate the First Amendment, the proscribed speech is without constitutional protection.42×42. Id. at 794.

Finally, Judge Gruender would have upheld the employment provision, as “[t]he plain language of the Alvarez plurality” permits statutes that proscribe “lies [told] for the purpose of securing an offer of employment,” regardless of their materiality.43×43. Id. (emphasis added).

In upholding the access provision of H.F. 589, the Eighth Circuit emphasized the “ancient . . . pedigree” of the prohibition in question, “[t]respass by misrepresentation.”44×44. Id. at 786 (majority opinion). But its pedigree is not as “ancient” as the panel claimed. In fact, at both early and contemporary common law, fraudulently induced consent was, in some cases, sufficient to defeat a claim of trespass. The panel’s oversimplified view of trespass led it to miss the potential overbreadth of H.F. 589.

That H.F. 589 proscribed only conduct underlying “an ancient cause of action” appears to have been key to the Eighth Circuit’s decision.45×45. Id. Although the panel did not express a view on Judge Gruender’s argument that only legally cognizable harms as of 1791 escape First Amendment scrutiny,46×46. See id. at 792–93 (Gruender, J., concurring in part and dissenting in part). it did emphasize that the harm at issue (“[t]respass by misrepresentation”) is “long recognized in this country.”47×47. Id. at 786 (majority opinion). Indeed, that the panel felt the need to describe trespass as “comparable” to the harms mentioned in Alvarez — rather than define “legally cognizable harm” by reference to Iowa law — suggests such a limited view of which harms count in this context.48×48. Id.

It is problematic, then, that the one case cited by the Eighth Circuit to demonstrate the ancient pedigree of trespass by misrepresentation is not a trespass case at all.49×49. See id. (citing De May v. Roberts, 9 N.W. 146, 149 (Mich. 1881)). The other case cited by the panel to support the claim that trespass by misrepresentation is a legally cognizable harm, Nichols v. City of Evansdale, 687 N.W.2d 562 (Iowa 2004), is just as unhelpful to its argument. While “every unlawful entry” and “every direct invasion of the person or property of another” may indeed constitute a trespass, this merely begs the question of what makes an entry “unlawful” (or a “direct invasion”) in the first place. ALDF, 8 F.4th at 786 (quoting Nichols, 687 N.W.2d at 573). Indeed, De May v. Roberts50×50. 9 N.W. 146. does not mention “trespass” once. Instead, De May is an invasion of privacy case.51×51. See, e.g., Beaumont v. Brown, 257 N.W.2d 522, 526 (Mich. 1977) (noting that De May recognized “a cause of action for invasion of privacy”); Harkey v. Abate, 346 N.W.2d 74, 76 (Mich. Ct. App. 1983) (describing De May as an “early case” in which the Michigan Supreme Court “affirm[ed] a verdict . . . based on an invasion of privacy”). But see 1 Restatement (Second) of Torts § 173 cmt. b., illus. 1 (Am. L. Inst. 1965) (presenting a fact pattern similar to De May in the context of trespass). Dr. De May, a physician called to Mrs. Roberts’s home to assist with her childbirth, arrived with a friend, Mr. Scattergood, whom Roberts presumed to be a student or physician, and who witnessed the birth.52×52. See De May, 9 N.W. at 146–47. But he was, instead, “a young unmarried man, . . . utterly ignorant of the practice of medicine.”53×53. Id. at 146. And he was, along with De May, “guilty of deceit.”54×54. Id. at 149. Roberts “had a legal right to the privacy of her apartment,” and to “intrude” upon her (in labor, no less) was to violate that right.55×55. Id. That the Michigan Supreme Court had to “search[] to find a legal basis to grant a remedy for the violation it saw” in De May and Scattergood’s conduct suggests that trespass alone did not provide a basis for recovery.56×56. Megan Richardson, The Right to Privacy 76 n.22 (2017); cf. De May, 9 N.W. at 148–49 (explaining that “[i]t would be shocking to our sense of right,” id. at 148–49, for the law not to “afford an ample remedy” for the defendants’ conduct, id. at 149).

In fact, several state high courts in the late nineteenth and early twentieth centuries rejected the very premise of trespass by misrepresentation.57×57. See, e.g., Alexander v. Letson, 7 So. 2d 33, 36 (Ala. 1942) (“[A]n action for trespass . . . will not lie unless plaintiff’s possession was intruded upon by defendant without his consent, even though consent may have been . . . procured by fraud . . . .”); North v. Williams, 13 A. 723, 727 (Pa. 1888) (“If a citizen desired to see another upon business which he knew to be unpleasant to the latter, and chose to assign some other than the real reason for asking admission, he certainly would not become a trespasser merely because he failed to give the true reason.”). In Kimball v. Custer,58×58. 73 Ill. 389 (1874). for example, the Illinois Supreme Court had occasion to consider when a guest, invited in under false pretenses, becomes a trespasser. There, despite the fact that the guest (a “pretended insurance agent”) had gained entry “by means of falsehood, fraud and deceit” — having sought permission to enter in order to examine the home’s ventilation — he was not a trespasser from the moment he entered the home.59×59. Id. at 392. It was, instead, “the moment he attempted to unbolt the door and open the house” to allow “his confederates” in — “although notified not to do so” — that he “became [a] trespasser[]”60×60. Id. at 392–93 (emphases added). by “abus[ing] . . . the privilege for which he professe[d] to enter.”61×61. Id. at 390; see also Dumont v. Smith, 4 Denio 319, 322 (N.Y. Sup. Ct. 1847). This distinction originated in early common law, which distinguished entries based on “an authority in law,” such as a court order, from those based on “an authority in fact,” that is, a landowner’s consent. Jewell v. Mahood, 44 N.H. 474, 474 (1863); see Six Carpenters’ Case (1610) 77 Eng. Rep. 695, 696; 8 Co. Rep. 146 a, 146 a–46 b. A person who entered on “an authority in law,” and exceeded that authority, was “a trespasser ab initio,” that is, from the beginning. Jewell, 44 N.H. at 474. But a person who entered on “an authority in fact,” and exceeded that authority, was “only liable for the excess.”  Id. Kimball, in short, represents a formalist view of consent as agreement.62×62. This view was echoed by Iowa courts. State v. Boggs, 164 N.W. 759 (Iowa 1917), for example, interpreted a state statute that criminalized “taking and operating” an automobile “without the consent of the owner.” Id. at 760. Boggs “obtained [the] consent of the [vehicle’s] owner” to use it for a short period, but then abandoned it. Id. Still, he did not violate the statute, the court explained, as “the owner consent[ed] to the . . . taking and driving.” Id. And as “[c]onsent is generally a full and perfect shield” to tort liability,63×63. Thomas M. CooleyA Treatise on the Law of Torts 163 (Chicago, Callaghan & Co. 1879). including trespass, it should come as no surprise that like-minded jurists would consider trespass by misrepresentation to be no trespass at all.64×64. In line with its progressive outlook, the first Restatement of Torts expounded — without a single citation — that “[a]ssent of the possessor of land fraudulently obtained . . . is not a consent to . . . entry thereon.” 1 Restatement of Torts § 173 (Am. L. Inst. 1934). As the drafters’ notes reveal, this rule was the American Law Institute’s invention, with “[n]o cases on [the] question . . . found” to discern the appropriate standard. Restatement of Torts § 16 special note (Am. L. Inst., Preliminary Draft No. 39, 1930).

Even from the perspective of contemporary common law — where fraud does, in some cases, vitiate consent — the panel oversimplified trespass. Compare ALDF with Desnick v. American Broadcasting Cos.65×65. 44 F.3d 1345 (7th Cir. 1995). There, a television network aired an exposé of an ophthalmic clinic’s fraudulent Medicare practices, aided by “secret videotapes” produced by agents of the network sent in to pose as patients.66×66. Id. at 1351; see id. at 1348–49. The Seventh Circuit rejected the clinic’s trespass claim.67×67. Id. at 1352. Judge Posner focused on “the specific interests that the tort of trespass seeks to protect”68×68. Id. — “the ownership [and] possession of land” — and found that those interests were not violated by the network’s actions.69×69. Id. at 1353. The Fourth, Ninth, and D.C. Circuits have each approved of Desnick. See IMAPizza, LLC v. At Pizza Ltd., 965 F.3d 871, 882 (D.C. Cir. 2020); Animal Legal Def. Fund v. Wasden, 878 F.3d 1184, 1196–97 (9th Cir. 2018); Food Lion, Inc. v. Cap. Cities/ABC, Inc., 194 F.3d 505, 517 (4th Cir. 1999). The panel, however, appears to have split from this consensus sub silentio. Similarly, adopting “Desnick’s thoughtful analysis,”70×70. Food Lion, 194 F.3d at 517. the Fourth Circuit held that use of a false resume to seek employment was insufficient to “turn[] [an] employee into a trespasser.”71×71. Id. at 518. The Fourth Circuit upheld the trespass verdict, however, on the basis of a tortious breach of the duty of loyalty. Id. at 516. The North Carolina Supreme Court went on to reject this “incorrect[] interpret[ation]” of state law, explaining that the duty of loyalty is not itself a cause of action, but merely “a defense to a claim of wrongful termination.” Dalton v. Camp, 548 S.E.2d 704, 709 (N.C. 2001).

Under this competing understanding of trespass, many of the lies criminalized by the access provision would not constitute trespass at all. Take, for example, the misrepresentations that the plaintiffs in ALDF engaged in: “omitting investigators’ affiliations with animal protection organizations . . . [and] their status as licensed private investigators” on job applications.72×72. Civil Rights Complaint, supra note 13, ¶ 94. There is little doubt that such misrepresentations would be material — no factory farm would knowingly hire a spy — and thus allow an investigator to “[o]btain[] access to an agricultural production facility by false pretenses.”73×73. Iowa Code § 717A.3A(1) (2021). Indeed, the only limiting principles identified by the panel were that the “false pretenses [must] be assumed intentionally,” ALDF, 8 F.4th at 786, and any such misrepresentation must be material, see id. at 787–88. However, even “successful resume fraud” does not a trespasser make, per the Fourth Circuit.74×74. Food Lion, 194 F.3d at 518.

But this, then, leaves H.F. 589 on unstable footing. After all, the Eighth Circuit predicated the constitutionality of the access provision on the correspondence of “access . . . by false pretenses” and trespass.75×75. ALDF, 8 F.4th at 785 (quoting Iowa Code § 717A.3A(1)); see id. at 786. And if some of the speech proscribed by the statute is constitutionally protected,76×76. Based on the Eighth Circuit’s logic, this conclusion seems inescapable. Imagine a journalist who hopes to write an exposé on factory farms. She gets permission from one such farm to go on a tour, telling the owner she is an incorrigible carnivore (when in truth she is a committed vegan) who will write a complimentary article (when in truth she will do nothing of the sort). H.F. 589, presumably, applies to her entry, despite the fact that her lies are constitutionally protected. Cf. id. at 787 (reasoning that “false statements that are not capable of influencing an offer of employment” — such as, “I like your . . . company philosophy” — are “protected by the First Amendment”). overbreadth doctrine — under which “a statute is facially invalid if it prohibits a substantial amount of protected speech”77×77. United States v. Williams, 553 U.S. 285, 292 (2008). — may apply. This is, in practice, a comparative exercise: Are a “substantial number”78×78. New York v. Ferber, 458 U.S. 747, 771 (1982). of H.F. 589’s applications unconstitutional, “judged in relation to [its] plainly legitimate sweep”?79×79. Id. at 770 (quoting Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973)); see also Richard H. Fallon, Jr., Making Sense of Overbreadth, 100 Yale L.J. 853, 893–98 (1991).

Under the logic of United States v. Stevens,80×80. 559 U.S. 460 (2010). it appears so. In Stevens, the Court invalidated as overbroad a federal statute that criminalized “‘any . . . depiction’ in which ‘a living animal is intentionally maimed, mutilated, tortured, wounded, or killed.’”81×81. Id. at 474 (quoting 18 U.S.C. § 48(c)(1) (2006)). “[T]he presumptively impermissible applications” of the law — “hunting magazines and videos,” for example — “far outnumber[ed] any permissible ones,” such as those involving animal cruelty.82×82. Id. at 481–82. “[T]he market” for the former, the Court noted, “dwarfed” that of the latter.83×83. Id. at 482. So too here. While some of the conduct at issue may constitute trespass at common law — for example, instances in which a person enters the farm to poison its water supply or otherwise compromise its biosecurity, as Iowa relied on in its brief84×84. See Defendants’-Appellants’ Brief and Argument at 43–44, ALDF, 8 F.4th 781 (No. 19-1364). — the State could not point to a single actual instance in which such a harm occurred.85×85. See ALDF II, 353 F. Supp. 3d 812, 825 (S.D. Iowa 2019). The access provision’s overbreadth seems sufficiently “real” and “substantial” to at least call its constitutionality into doubt.86×86. Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973). And unlike Virginia v. Hicks, 539 U.S. 113 (2003), where the Court upheld a criminal trespass law as consistent with the First Amendment — warning against “overbreadth challenge[s]” to laws “not specifically addressed to speech,” id. at 124 — H.F. 589 cannot be violated without engaging in speech, see ALDF, 8 F.4th at 784.

The Eighth Circuit’s oversimplification of trespass led it to ignore the extraordinary breadth of H.F. 589. In sum, the panel missed an opportunity to clarify one doctrine’s scope (Alvarez), and in so doing, muddied the doctrinal waters of another (trespass). While its impact may be limited in the long term — if a prosecution is commenced under H.F. 589, an as-applied challenge is almost certain to result — its consequences may not be so limited in the interim, particularly for the animal rights groups whose investigations cannot proceed while the law remains in place.87×87. See Civil Rights Complaint, supra note 13, ¶¶ 103–04. As the Court reminds us, “[t]he mere potential for the exercise of [such a] power casts a chill” — “a chill the First Amendment cannot permit.”88×88. United States v. Alvarez, 567 U.S. 709, 723 (2012) (plurality opinion).