Eighth Circuit Upholds Iowa’s Trespass-Surveillance Ban Against Animal Rights Groups

The Eighth Circuit Court of Appeals has upheld Iowa’s trespass-surveillance statute, ruling that it does not violate the First Amendment rights of animal welfare groups seeking to record their trespasses on private property.

In PETA, Inc. v. Reynolds, decided on Thursday, the court (Judges Steven Grasz, James Loken, and Raymond Gruender) affirmed the constitutionality of Iowa’s law, which criminalizes the use of cameras or electronic devices while trespassing.

Iowa’s general trespass statute defines trespass as “entering or remaining upon or in property … after being notified or requested to abstain from entering or to remove or vacate therefrom by the owner.” A simple trespass, without bodily injury or property damage exceeding $300, is classified as a misdemeanor, punishable by a fine of $105 to $855 and up to 30 days in jail.

In 2021, Iowa amended its trespass law by enacting § 727.8A, creating a separate “trespass-surveillance” offense. This law imposes stricter penalties for trespassers who use cameras or recording devices. A first offense is an aggravated misdemeanor, punishable by a fine of $855 to $8,540 and up to two years in prison. A second or subsequent offense is a Class D felony, with fines ranging from $1,025 to $10,245 and up to five years imprisonment.

Animal welfare groups, including Iowa Citizens for Community Improvement (ICCI), filed as-applied challenges, arguing that the law chilled their members’ speech. ICCI contends its members intentionally record themselves trespassing at political and corporate sites to draw attention to their activities. While they are willing to accept penalties for ordinary trespass, the heightened consequences for recording have deterred their advocacy.

The court acknowledged that “freedom of speech includes expression through the making and sharing of videos” in some contexts. However, it noted that the Supreme Court has never held that trespassers have a First Amendment right to free speech on privately owned property. Citing Lloyd Corp. v. Tanner (1972) and Hudgens v. NLRB (1976), the court emphasized that property owners retain the right to exclude individuals, even for expressive purposes.

The Eighth Circuit concluded that even if recording while trespassing implicates the First Amendment, the as-applied challenge by ICCI and others fails. The court applied intermediate scrutiny and determined that § 727.8A is narrowly tailored to serve Iowa’s compelling interest in protecting private property rights.