In a victory for environmentalists, a Wyoming court has found that a controversial trespass law violates the right to free speech.
The state’s district court ruled Monday that Senate File 12, better known as the Data Trespass Law, is unconstitutional because it is “in violation of the First Amendment.” The law made it illegal for anyone to collect data on public or private open land — data often required by groups monitoring pollution from cattle grazing and other agricultural practices.
Critics of the law argued that it would silence whistle-blowers who expose public land management issues, particularly malpractice within the agriculture industry. The law, they said, would make it illegal for citizen scientists or concerned residents to expose contamination of streams by the ranching industry — which represents a significant share of the state’s economy. In 2015, a coalition of environmental, justice, and animal rights groups filed a lawsuit against the Data Trespass Law in federal court.
The law has been compared to other “ag-gag” laws in states such as Idaho or Utah, which specifically targeted undercover investigations of slaughterhouses. (These laws have also been successfully challenged in court.) Wyoming, however, was the first to introduce a more generalized version of an ag-gag law that didn’t have language directed specifically at factory farming. The state instead argues that the law was designed to grant more rights to property owners against trespassers.
But the way it was set up, Wyoming’s Data Trespass Law put individuals gathering scientific data at risk of trespass violations should they cross over a parcel of private land on their way to a spot on public land, a clear possibility in a state with sprawling, open lands such as Wyoming.
David Muraskin, food project attorney at Public Justice, told ThinkProgress that rather than addressing general trespass rules, the law specifically targeted data-gathering about the environment. That “is a typical thing investigators are concerned about, especially in a state like Wyoming where there are not a lot of slaughterhouses,” Muraskin said. “It’s more grazing pollution.”
Public Justice represented the Western Watersheds Project (WWP), a nonprofit conservation organization that collects water quality data in an effort to improve public land management. The organization has been at odds with the ranching industry for years.
Muraskin said that he believes since the Data Trespass Law was adopted, WWP’s work in Wyoming dropped roughly 65 percent. This is because the law directly restricted the group’s ability access the sites they needed to get to in order to collect the necessary data to monitor ecological risks.
The Western Watershed Project wasn’t alone; due to the broad language contained in the law, a range of groups were affected. The Natural Resources Defense Council (NRDC), halted an air pollution monitoring project in the state, according to Muraskin. And journalists also found themselves restricted, unable to reach certain locations to take photos for news articles (the photos, too, would have been considered data).
This specific point regarding data was the crux of Public Justice’s legal victory. Through the course of the legal proceedings, the court found that “data is the information you need to be able to formulate your speech,” Muraskin explained. So, “that is protected under the First Amendment.”
Added to this is the issue of the state’s claim that the law is about trespassing. In its final decision issued Monday, the court stated that the defendants failed to demonstrate how targeting data collection would stop trespassers. “Trespass can be regulated and criminalized without any requirement of subsequent engagement in protected speech activities,” the court said.
In other words, “targeting speech suggests, in fact, that you weren’t trying to target trespass,” Muraskin said, “and so the statute is not properly targeted.”
“This [law] was Wyoming’s attempt to really skew the discourse and prevent specific types of conversation, to specifically prevent environmental speech,” Muraskin continued, saying the state was instead trying to hide its true intentions in language about trespass.
The court agreed. It ruled that “there is simply no plausible reason for the specific curtailment of speech in the statutes beyond a clear attempt to punish individuals for engaging in protected speech that at least some find unpleasant.”
Wyoming isn’t the only state to be pursuing new, seemingly broader or disguised “ag-gag” laws. North Carolina and Arkansas have introduced similar legislation — and Public Justice hopes the court’s ruling in Wyoming will help support cases in other states.
“What we hope this decision shows is that the state legislature’s attempt to hide the fact that they are hiding factory farms from scrutiny aren’t going to stand, that we are going to be able to show that they are in fact trying to suppress speech just like when they specifically set out to target these undercover investigations,” Muraskin said. “They may think they’re being clever, but they are not. They’re in fact violating the First Amendment.”