In United States v. Alvarez,1 a fractured Court invalidated the Stolen Valor Act of 20052 — prohibiting any person from “falsely represent[ing] himself or herself” as having “been awarded any [military] decoration or medal” — on First Amendment grounds.3 “[F]alse speech,” a plurality of the Court declared, is not “a general category” of its own, “presumptively unprotected.”4 In Alvarez’s wake, however, lower courts have struggled to figure out just which lies the First Amendment protects.5 Recently, in Animal Legal Defense Fund v. Reynolds6 (ALDF), the Eighth Circuit read Alvarez to permit an Iowa statutory provision that criminalizes gaining access to a farm under “false pretenses,”7 splitting with the Ninth Circuit, which invalidated an almost identical provision in 2018.8 The panel’s tidy holding — that trespass is a “legally cognizable harm,” and therefore any lies associated with it can be safely proscribed9 — 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 the Iowa General Assembly passed House File 589 (H.F. 589), criminalizing “agricultural production facility fraud.”11 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 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
The district court granted the plaintiffs’ motion for summary judgment and denied Iowa’s cross-motion.14 Senior Judge Gritzner proceeded in “three stages.”15 First, he held that H.F. 589 implicates protected speech.16 Second, he noted that H.F. 589, as a content-based restriction on speech, would ordinarily be subject to strict scrutiny.17 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 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 In a subsequent order, he permanently enjoined enforcement of the law.20
The Eighth Circuit affirmed in part, reversed in part, vacated the injunction in part, and remanded.21 Writing for the panel, Judge Colloton22 upheld the access provision and invalidated the employment provision.23 Agreeing with the district court, he found that each provision regulates speech based on content.24 As the content distinction at issue hinged on the speech’s falsity, he too turned to Alvarez.25 The challenge, however, was how to interpret the split in Alvarez itself. As neither opinion was “a logical subset”26 of the other, neither controlled under Marks v. United States.27 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
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 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
The employment provision, on the other hand, “sweeps more broadly.”31 Unlike the access provision — which proscribes only material misrepresentations — the employment provision criminalizes even “immaterial falsehoods.”32 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 Under either strict or intermediate scrutiny, it fails: its scope is “too broad” and “less restrictive means” are too readily available.34
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
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 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 Instead, he would have evaluated Alvarez’s reach using two other tests: deciphering the “opinion that offers the least change to the law,”38 and assessing the outcome in ALDF “that would have commanded the votes of any five justices of the [Alvarez] Court, including any dissenters.”39 Both pointed to the plurality.40
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 As the access provision “is a trespass law,” and as such laws predate the First Amendment, the proscribed speech is without constitutional protection.42
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
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 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 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 it did emphasize that the harm at issue (“[t]respass by misrepresentation”) is “long recognized in this country.”47 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
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 Indeed, De May v. Roberts50 does not mention “trespass” once. Instead, De May is an invasion of privacy case.51 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 But he was, instead, “a young unmarried man, . . . utterly ignorant of the practice of medicine.”53 And he was, along with De May, “guilty of deceit.”54 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 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
In fact, several state high courts in the late nineteenth and early twentieth centuries rejected the very premise of trespass by misrepresentation.57 In Kimball v. Custer,58 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 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 by “abus[ing] . . . the privilege for which he professe[d] to enter.”61 Kimball, in short, represents a formalist view of consent as agreement.62 And as “[c]onsent is generally a full and perfect shield” to tort liability,63 including trespass, it should come as no surprise that like-minded jurists would consider trespass by misrepresentation to be no trespass at all.64
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 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 The Seventh Circuit rejected the clinic’s trespass claim.67 Judge Posner focused on “the specific interests that the tort of trespass seeks to protect”68 — “the ownership [and] possession of land” — and found that those interests were not violated by the network’s actions.69 Similarly, adopting “Desnick’s thoughtful analysis,”70 the Fourth Circuit held that use of a false resume to seek employment was insufficient to “turn[] [an] employee into a trespasser.”71
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 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 However, even “successful resume fraud” does not a trespasser make, per the Fourth Circuit.74
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 And if some of the speech proscribed by the statute is constitutionally protected,76 overbreadth doctrine — under which “a statute is facially invalid if it prohibits a substantial amount of protected speech”77 — may apply. This is, in practice, a comparative exercise: Are a “substantial number”78 of H.F. 589’s applications unconstitutional, “judged in relation to [its] plainly legitimate sweep”?79
Under the logic of United States v. Stevens,80 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 “[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 “[T]he market” for the former, the Court noted, “dwarfed” that of the latter.83 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 — the State could not point to a single actual instance in which such a harm occurred.85 The access provision’s overbreadth seems sufficiently “real” and “substantial” to at least call its constitutionality into doubt.86
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 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