Can the government punish you for reporting pollution?

You’d probably think the answer is a resounding “no.” But what if you violate the law in your pursuit of the evidence of pollution?

That’s the issue raised by so-called “ag-gag” laws. The laws vary substantially but generally aim to protect commercial agriculture from criticism or harassment (depending on your point of view) by animal rights activists and environmentalists. These laws either expand the definition of trespass to include accessing private property with permission, but under false pretenses, or increase the penalties for traditional trespasses committed in pursuit of gathering animal welfare or environmental information.

Because ag-gag laws use trespass as their hook, they lie in the intersection between the Fifth Amendment’s property rights protections and the First Amendment’s free speech protections. Property owners have the right to exclude anyone from their property for any reason, and states have an interest in protecting that right, but states are also forbidden from censoring or punishing speech or the creation of speech.

Several of these laws have been challenged under the First Amendment and the laws have received a cool reception from the courts. One of the rare exceptions was a Wyoming federal court’s decision dismissing a challenge to that state’s law. After the court initially ruled that the law might be unconstitutional, the state amended the law to limit it to trespass on private land (previously, it could have been read to bar access to public land). This cured any First Amendment concerns, according to the trial-level court.

In this case, Plaintiffs challenge the statutes based upon their restriction of creation of speech by illegal means. Plaintiffs’ First Amendment right to create speech does not carry with it an exemption from other principles of law, or the legal rights of others. Plaintiffs’ desire to access certain information, no matter how important or sacrosanct they believe the information to be, does not compel a private landowner to yield his property rights and right to privacy. . . In short, there is no First Amendment right to trespass upon private property for the purpose of collecting resource data.

Those principles are correct; your First Amendment rights generally end at your neighbor’s property line.

But, last month, the Tenth Circuit overruled the decision because the district court had missed the crux of the problem. States absolutely can protect property owners’ rights from trespass, but the question is whether it can impose harsher punishments for trespass based on the trespassers’ exercise of First Amendment rights.

Had plaintiffs challenged Wyoming’s general trespass statute as impairing
their right to gather information, [property rights] might control. . . [But] plaintiffs in this case contest the constitutionality of Wyoming’s differential treatment of individuals who create speech. . . The challenged statutes apply specifically to the creation of speech, and thus we conclude they are subject to the First Amendment.

That’s right as a matter of constitutional doctrine. That property owners can deny access for reasons that limit the exercise of constitutional rights doesn’t mean that government can use that as a springboard for it to limit those rights. For instance, a property owner could impose a race-based limitation on the guests she invites on her property. But the state could not impose harsher punishments on minorities who trespass on a bigot’s property than would apply to other trespassers.

That ag-gag laws are unconstitutional does not mean that the trespassers they seek to regulate are not a significant annoyance to property owners. So what should a pro-property-rights environmentalist think about the issue? One reaction would be that property owners already have all of the tools they need to protect themselves. They can monitor who’s accessing their property and use traditional trespass laws to protect their rights. If the penalties for trespass are too low to provide adequate protection, they should be increased across the board rather than to target speech.

Ultimately, though, this conflict arises because of the almost exclusive reliance on regulation to protect environmental values. Activists trespass to gather data so that it can be used by bureaucrats to control private property. And the property owners strongly resist this particular form of trespass because they resent the regulatory restraints that are likely to result from it. Greater reliance on markets and property rights would alleviate these concerns.

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