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.
