Article Review: Fraud and First Amendment Protections of False Speech: How United States v. Alvarez Impacts Constitutional Challenges to Ag-Gag Laws

Fraud and First Amendment Protections of False Speech: How United States v. Alvarez Impacts Constitutional Challenges to Ag-Gag Laws was published in April of 2014 by Larissa U. Liebmann. The article discusses the constitutionality, or lack thereof, of certain statutes that criminalize false speech on employee applications, specifically those in the animal agriculture business. This article was particularly intriguing because one would assume that such a statute is harmless in keeping the employer’s interests protected from potential employees who have alternative motives beyond working as the typical employee. What these statutes are in fact trying to prevent are people gaining access to the facility and secretly filming any animal cruelty or other illegal activities. This article analyzes the probable outcome of these statutes facing a constitutional challenge against the First Amendment.

Ag-Gag laws make it a crime for employees to intentionally misstate facts on their job application to gain employment with the intent to exploit unlawful or inhumane practices in agricultural production facilities.  While an employer would argue that these laws protect their privacy that they are entitled to, the Ag-Gag laws also pose a threat in suppressing false speech, which is protected by the First Amendment. This article analyzes whether the speech restricted by the Ag-Gag laws are either content-based subject to strict-scrutiny or fraudulent speech, which would be subject to a lower scrutiny standard.

I find the article’s argument categorizing the restricted speech as a content-based restriction to be very convincing. The Ag-Gag laws limit what a potential employee can write on an application, therefore constraining a person’s speech. The article compares these laws to the Stolen Valor Act[1] and how they both criminalize lying, or “false speech” on employment applications. Under both of these laws, a conviction can only be made if the statement made was actually false. Therefore, this contingent is established on content, rendering the Ag-Gag laws a content-based restriction. Having a law that restricts content-based speech should be subjected to a strict-scrutiny standard under the First Amendment so long as it is not fraudulent.

The article continues on to explain that in order for speech to be considered fraudulent, there must be a casual connection between the speech being restricted and the harm alleged to result from that speech. Normally, a misrepresentation must have been said in order to deceive someone, which did deceive someone and so caused injury to the deceived victim. However, false speech is only fraudulent if it holds the potential to cause a given harm; without the link connecting the speech restriction to the potential harm, there is no fraud.

The main statutes under analysis in this article are the Ag-Gag statutes from Utah and Iowa.[2] Both explain their intent but do not state any type of harm in which they are seeking to prevent. The lack of specificity leads to the lack of the required nexus between a speech restriction and a potential harm. This would allow for these laws to be considered one that punishes fraudulent speech, subject to lower scrutiny. The statutes’ intentions imply the protection of certain dangers of having unauthorized personnel on the premises however there still lacks any hard evidence or proof of these dangers posing a threat.

After determining that the Ag-Gag laws are content-based restrictions, the conclusion is drawn that they would not survive a strict-scrutiny analysis, which requires the statute to have a compelling government interest that was narrowly tailored to by the law.  It would be hard to disagree that these laws would not survive a strict or heightened scrutiny due to their lack of a compelling government interest that is neither expressed in the actual statutes nor evidenced with proof. Utah and Iowa’s state Ag-Gag laws would be rendered unconstitutional under this analysis.

[1] 18 U.S.C. § 704(b), (c) (2012).

[2] IOWA CODE ANN. § 717A.3A(1)(b) (West 2013); UTAH CODE ANN. § 76-6-112(2)(c) (West 2013).

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