Public Interest

Wyoming 'Data Censorship' Law Under Fire In Federal Court

Will this law face the same fate as one in a neighboring state?

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Way back in March, I wrote about a freshly passed Wyoming law that criminalized “collecting resource data.” The law appeared designed to stop pesky journalists and activists from documenting abuses on ranches and poultry and dairy farms — a so-called ag-gag law. But the actual language of the law was exceptionally broad. In my earlier post, I wrote that “by my reading, you’ve technically violated this law and could be subject to a year’s imprisonment if you idly counted the dandelions in a Wyoming farmer’s front yard without asking the farmer first.” (I see now that your dandelion count would have to be reported to the government, or you’d have to intend to report it, to violate the law — but still.)

And so I concluded my post with these (abridged) words: “Bad laws like this do accomplish one good thing: they keep public interest lawyers employed. Lawyers like those at the Center for Food Safety should be lining up already to see Wyoming’s law struck down.”

Sure enough, some months later, the Center for Food Safety sued — along with fellow plaintiffs the Western Watersheds Project, National Press Photographers Association, Natural Resources Defense Council (NRDC), and People for the Ethical Treatment of Animals (PETA). And if Wyoming’s goal was indeed to keep public interest lawyers employed, then consider the lawsuit a victory: the complaint lists ten lawyers.

Moving to the substance of the complaint, it sets forth four claims. Much of the ethically sourced meat is in the first two. First, it alleges that the Wyoming law — which (along with a companion law) it calls the “Wyoming Data Censorship Statutes” — violates the plaintiffs’ First Amendment right to petition the government. The gist of the argument is that it criminalizes gathering “resource data” that is “submitted or intended to be submitted to any agency of the State or Federal government,” which is pretty much a flat criminalization of, well, petitioning the government. Seems straightforward enough. Second, the complaint alleges that the Wyoming law violates the plaintiffs’ First Amendment right to free speech, inasmuch as it distinguishes pre-existing people who trespass from people who trespass for expressive purposes, singling out the latter for special punishment. The complaint goes on to set forth a smorgasbord of other allegations under the Free Speech clause of the First Amendment: namely, facial overbreadth, content discrimination, and viewpoint discrimination. There’s a lot there, but overall the claim still seems straightforward enough: the law plainly criminalizes an expressive act. The last two claims allege that the Wyoming law is preempted by federal law and that it intentionally discriminates against environmentalists and environmental groups, because of animus against them, in violation of the Equal Protection clause of the Fourteenth Amendment.

If it isn’t clear by now, I think this lawsuit should be a slam dunk for the plaintiffs. Why is that? In August, I wrote about an ag-gag law getting struck down by a federal judge in Idaho. In that case, plaintiffs including the Center for Food Safety, Western Watersheds Project, and PETA sued to strike down Idaho’s ag-gag law, claiming violations of the First and Fourteenth Amendment. The complaint listed a legion of public interest lawyers. The state swiftly filed a motion to dismiss, which was mostly denied; then the plaintiffs filed a motion for summary judgment, which was granted in a not-particularly-close decision.

Sound familiar? Well, it recently got even more familiar. Just as in the Idaho case, the state of Wyoming swiftly filed a motion to dismiss. That motion recently went to a hearing before U.S. District Judge Scott Skavdahl. According to an Associated Press article, Wyoming argued that the plaintiff groups lack standing to sue. But the article suggests that Judge Skavdahl’s questions at the hearing went more to the substance of the plaintiffs’ claims: Just how far does the law go? Would it apply, for example, to someone standing on a public road and taking a photograph of private property?

We should find out soon enough if that case survives the state’s motion and continues to track its Idaho predecessor. But in the meantime, thanks, Wyoming, for creating work for public interest lawyers. And thanks to the public interest lawyers who have taken up the challenge! (If you’re curious, you can find out who they are by scrolling to the bottom of the complaint.)

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Earlier: Ag-Gag Laws Are Lawsuit Fodder
Ag-Gag Law Falls In Federal Court

Sam Wright is a dyed-in-the-wool, bleeding-heart public interest lawyer who has spent his career exclusively in nonprofits and government. If you have ideas, questions, kudos, or complaints about his column or public interest law in general, send him an email at [email protected].

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