Last month the Eighth Circuit decided two appeals involving First Amendment challenges to state laws affecting the ability of animal-rights organizations to conduct undercover investigations of industrial animal agriculture operations. Judge Colloton wrote the majority opinion in both cases.

The first case, Animal Legal Defense Fund v. Vaught, No. 20-1538 (8th Cir. Aug. 9, 2021), arose from a challenge to an Arkansas statute that provided a civil cause of action for "unauthorized access to property." Ark. Code Ann. §16-118-113. The law prohibits a person "who knowingly gains access to a nonpublic area of a commercial property" from engaging in "an act that exceeds the person's authority." Id. §16-118-113(b). The plaintiff organizations alleged that they had "specific and definite plans" to investigate a pig farm (alleged to be owned by a state legislator who sponsored the legislation in question) and a chicken slaughterhouse by sending undercover investigators to seek employment with the farm and slaughterhouse, or with third parties with access to those facilities. Once employed, the undercover investigators would collect information by personal observation or by using unattended recording devices. The plaintiff organizations alleged that they did not execute their plans because of the existence of the Arkansas law. They sued, seeking an order that would prevent the slaughterhouse and farm from bringing a civil suit against them.

The district court dismissed the case for lack of Article III standing, but the Eighth Circuit disagreed. Judge Colloton made three main conclusions about Article III standing. First, the plaintiffs' planned conduct (sending investigators to gather information and to take video and audio recordings in the facilities) "is arguably protected with a constitutional interest" because, as the Supreme Court has stated, "the creation and dissemination of information are speech within the meaning of the First Amendment." Sorrell v. IMS Health, 564 U.S. 552, 570 (2011). Second, the plaintiffs alleged an intention to engage in a course of conduct that arguably violates the statutes. And third, the plaintiffs "sufficiently allege[d] a credible threat of enforcement." Judge Colloton favorably cited PETA v. Stein, 737 F. App'x 122, 130 (4th Cir. 2019) (per curiam), in which the Fourth Circuit held that organizations that, among other things, had engaged in undercover operations to expose animal cruelty, had Article III standing to challenge a North Carolina statute on First Amendment grounds. The panel decision reversed the on the question of standing and remanded for the district court to consider the merits.