A Wyoming “Data Trespass” law impacts the free speech rights of journalists and environmentalists, a federal appellate court ruled today. The National Press Photographers Association, along with other plaintiffs, is suing the State of Wyoming in an effort to overturn the law, which NPPA believes is an attempt to suppress free speech by criminalizing the gathering of data on public land by anyone who inadvertently crosses unmarked private property to get there.
The impact of the ruling is that the state will now have to produce substantial evidence to justify the law — something David Muraskin, Food Project Attorney for Public Justice, who was lead counsel on the appeal, thinks will be a difficult burden for the state to carry.
In its ruling today, the U.S. Court of Appeals for the Tenth Circuit reversed an earlier district court ruling. The case was brought by a coalition of non-profit organizations including the NPPA, the Western Watersheds Project, the Natural Resources Defense Council, and Public Justice.
“The [statutes] regulate protected speech under the First Amendment and they are not shielded from constitutional scrutiny merely because they touch upon access to private property,” the Tenth Circuit wrote in its opinion. The case has been remanded to the district court for further ruling on the level of scrutiny that should be applied to the laws.
The Wyoming law is one of several “ag-gag” laws across the country. While many ag-gag laws make it illegal to enter factory farms for the purpose of collecting data and documenting legal violations, Wyoming’s law is not limited to farms, and instead criminalizes gathering any “data” from public lands regarding environmental conditions, if one touches private land — even accidentally — on the way to that public land. Violators could be criminally charged and face jail time.
The law not only stifles environmental investigations, it would also apply to many journalistic situations or even nature photography.
“Censoring the press runs counter to the protections embodied in the First Amendment. The government should not be allowed to chill that right by criminalizing the media’s role of gathering and disseminating information and images on matters of public concern,” said Mickey Osterreicher, general counsel for the NPPA.
The court’s decision marks the third time in the past two years that a federal court has applied the First Amendment to a state statute that attempts to criminalize the collection of information about environmental conditions or agricultural practices.
As NPPA Attorney Alicia Calzada explained, “This law is particularly egregious for the impact it had on the ability of journalists to do even the most basic environmental and science reporting. The appellate court’s acknowledgement of the right of citizens –whether journalist or environmentalists – to gather information for the purpose of communicating about, and with, our government is an important victory.”
With a nod to opinions around the nation related to the right to record police activity, the Tenth Circuit explained that, “An individual who photographs animals or takes notes about habitat conditions is creating speech in the same manner as an individual who records a police encounter.”
Wyoming’s “Data Trespass” laws originally banned collecting data — including by taking pictures — on public land, regardless of whether private land was involved. After the lawsuit was filed, Wyoming amended its law to ban data collection on public property if the person crossed private land on the way to public land.
But, as federal courts have noted, Wyoming is a “jumble of federal, state, and private land.” According to Muraskin, “You cannot move in Wyoming without risking accidentally touching private land, thus the laws stopped people from even trying to reach public lands.”
The ruling in Wyoming could influence similar laws in other states that inhibit free speech while shielding polluters from accountability said Muraskin.
“The laws are being pushed by lobbyists looking to provide cover for some of the worst corporate actors. The court’s ruling today is a win for transparency, free speech and citizen science,” said Muraskin.
Michael Wall, litigation director of the Natural Resources Defense Council added,“This decision will rightly put one of the most egregiously un-American laws I have seen in recent years on the scrapheap with other censorship laws, where it belongs.”