FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANIMAL LEGAL DEFENSE FUND;

PEOPLE FOR THE ETHICAL 

TREATMENT OF ANIMALS INC;

AMERICAN CIVIL LIBERTIES UNION 

OF IDAHO; CENTER FOR FOOD 

SAFETY; FARM SANCTUARY; RIVER’S 

WISH ANIMAL SANCTUARY;

WESTERN WATERSHEDS PROJECT;

SANDPOINT VEGETARIANS; IDAHO 

CONCERNED AREA RESIDENTS FOR 

THE ENVIRONMENT; IDAHO HISPANIC 

CAUCUS INSTITUTE FOR RESEARCH 

AND EDUCATION; COUNTERPUNCH;

FARM FORWARD; WILL POTTER;

JAMES MCWILLIAMS; MONTE 

HICKMAN; BLAIR KOCH; DANIEL 

HAUFF,

Plaintiffs-Appellees,

v.

LAWRENCE G. WASDEN, in his 

official capacity as Attorney General 

of Idaho,

Defendant-Appellant.

No. 15-35960

D.C. No.

1:14-cv-00104-

BLW

OPINION

Appeal from the United States District Court

for the District of Idaho
2 ANIMAL LEGAL DEFENSE FUND V. WASDEN

B. Lynn Winmill, Chief District Judge, Presiding

Argued and Submitted May 12, 2017

Seattle, Washington

Filed January 4, 2018

Before: M. Margaret McKeown, Richard C. Tallman,

and Carlos T. Bea, Circuit Judges.

Opinion by Judge McKeown; 

Partial Concurrence and Partial Dissent by Judge Bea

SUMMARY*

Civil Rights

The panel affirmed in part and reversed in part the 

district court’s entry of summary judgment in favor of the 

Animal Legal Defense Fund and vacated in part the district 

court’s permanent injunction against enforcement of Idaho’s 

Interference with Agricultural Production law, Idaho Code 

§ 18-7042.

The Interference with Agricultural Production law was 

enacted after a disturbing secretly-filmed expose of 

operations at an Idaho dairy farm went live on the internet. 

The statute—targeted at undercover investigation of 

agricultural operations—broadly criminalizes making 

 * This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
ANIMAL LEGAL DEFENSE FUND V. WASDEN 3

misrepresentations to access an agricultural production 

facility as well as making audio and video recordings of the 

facility without the owner’s consent.

The panel held that Idaho’s criminalization of 

misrepresentations to enter a production facility, § 18-

7042(1)(a), could not survive First Amendment scrutiny. 

The panel held that the subsection criminalized innocent 

behavior, was staggeringly overbroad, and that the purpose 

of the statute was, in large part, targeted at speech and 

investigative journalists. The panel also struck down the 

statute’s subsection which banned audio and video 

recordings of a production facility’s operations, § 18-

7042(1)(d). The panel held that the Recordings Clause 

regulated speech protected by the First Amendment and was 

a classic example of a content-based restriction that could 

not survive strict scrutiny.

The panel held that § 18-7042(1)(b)—which 

criminalizes obtaining records of an agricultural production 

facility by misrepresentation—protected against a legally 

cognizable harm associated with a false statement and 

therefore survived constitutional scrutiny under United 

States v. Alvarez, 567 U.S. 709 (2012). Finally, the panel 

upheld the constitutionality of § 18-7042(1)(c), which 

criminalizes obtaining employment by misrepresentation 

with the intent to cause economic or other injury. The panel 

rejected plaintiffs’ argument that the statute would reach “a 

person who overstates her education or experience to get a 

job for which she otherwise would not have qualified, 

whether the person is an undercover investigator or not,” 

because in such a case, the law’s requisite intent to injure 

would not be satisfied.

Dissenting in part and concurring in part, Judge Bea 

stated that subsection § 18-7042(1)(a), pertaining to the 
4 ANIMAL LEGAL DEFENSE FUND V. WASDEN

criminalization of misrepresentations to enter a production 

facility, should survive First Amendment review. Judge Bea 

would hold that the ability to hold property or to exercise 

control of it requires recognition by courts of the owner’s 

right to exclusive possession of the land—the right to 

exclude anyone from entry, at any time, and for any reason 

at all or indeed for no reason.

COUNSEL

Carl Jeffrey Withroe (argued) and Clay R. Smith, Deputy 

Attorneys General; Steven L. Olsen, Chief of Civil 

Litigation; Lawrence G. Wasden, Attorney General; Office 

of the Attorney General, Boise, Idaho; for DefendantAppellant.

Justin F. Marceau (argued), Of Counsel, Animal Legal 

Defense Fund, Denver, Colorado; Matthew Liebman, 

Animal Legal Defense Fund, Cotati, California; Alan K. 

Chen, University of Denver, Sturm College of Law, Denver, 

Colorado; Matthew Strugar, PETA Foundation, Los 

Angeles, California; Leslie A. Brueckner, Oakland, 

California; Paige M. Tomaselli and Cristina R. Stella, Center 

for Food Safety, San Francisco, California; Richard Alan 

Eppink, American Civil Liberties Union of Idaho 

Foundation, Boise, Idaho; Maria Andrade, Boise, Idaho; for 

Plaintiffs-Appellees.

James J. Pizzirusso and Sarah R. LaFreniere, Hausfeld, 

Washington, D.C., for Amicus Curiae Plant Based Foods 

Association.
ANIMAL LEGAL DEFENSE FUND V. WASDEN 5

Marty Durand and James Piotrowski, Herzfeld & Piotrowski 

PLLC, Boise, Idaho, for Amici Curiae Idaho Building 

Trades Council and Idaho AFL-CIO.

Sarah L. Nash, Government Accountability Project Food 

Integrity Campaign, Washington, D.C.; Craig H. Durham, 

Ferguson Durham PLLC, Boise, Idaho; for Amicus Curiae 

Government Accountability Project.

R. Bruce Rich and Jonathan Bloom, Weil Gotshal & Manges 

LLP, New York, New York, for Amici Curiae Association 

of American Publishers, American Booksellers for Free 

Expression, Authors Guild Inc., Freedom to Read 

Foundation, and Media Coalition Foundation.

Hannah Connor, Center for Biological Diversity, 

Washington, D.C.; Tarah Heinzen, Food & Water Watch, 

Washington, D.C.; for Amici Curiae Center for Biological 

Diversity and Food & Water Watch.

David A. Schulz, Media Freedom & Information Access 

Clinic, New York, New York; Jonathan M. Manes, New 

Haven, Connecticut; for Amici Curiae Abrams Institute for 

Freedom of Expression and Scholars of First Amendment 

and Information Law.

Bruce D. Brown, Gregg P. Leslie, and Michael J. Lambert, 

Reporters Committee for Freedom of the Press, Washington, 

D.C., for Amici Curiae Reporters Committee for Freedom of 

the Press and 22 Media Organizations.

Deepak Gupta, Gupta Wessler PLLC, Washington, D.C., for 

Amicus Curiae Erwin Chemerinsky.
6 ANIMAL LEGAL DEFENSE FUND V. WASDEN

Andrew P. Bridges, Alexis I. Caloza, and Kathleen Lu, 

Fenwick & West LLP, San Francisco, California, for 

Amicus Curiae United Farm Workers of America. Geoffrey 

J. McConnell, McConnell Wagner Sykes & Stacey PLLC, 

Boise, Idaho, for Amicus Curiae Susannah W. Pollvogt, 

Scholar of the Law of Unconstitutional Animus.

Shayana Kadidal, Center for Constitutional Rights, New 

York, New York, for Amici Curiae Professors Brooke 

Kroeger and Ted Conover.

Mahesha P. Subbaraman, Subbaraman PLLC, Minneapolis, 

Minnesota, for Amici Curiae Food Law & Policy Scholars.

OPINION

McKEOWN, Circuit Judge:

Investigative journalism has long been a fixture in the 

American press, particularly with regard to food safety.1 In 

the early 1900s, Upton Sinclair highlighted conditions in the 

meat-packing industry in The Jungle, a novel based on his 

time working incognito in a packing plant.2 This case also 

originates in the agricultural sector—a secretly-filmed 

exposé of the operation of an Idaho dairy farm. By all 

accounts, the video was disturbing: dairy workers were 

shown dragging a cow across the ground by a chain attached 

 1 See Brooke Kroeger, Undercover Reporting: An American 

Tradition, IRE J. 20 (Spring 2014).

2 Upton Sinclair, The Jungle (Dover Thrift eds., Dover Publications 

2001) (1906).
ANIMAL LEGAL DEFENSE FUND V. WASDEN 7

to her neck; twisting cows’ tails to inflict excruciating pain; 

and repeatedly beating, kicking, and jumping on cows to 

force them to move.3

After the film went live on the Internet, both the court of 

public opinion and the Idaho legislature responded, with the 

latter eventually enacting the Interference with 

Agricultural Production law. Idaho Code § 18-7042. That 

legislation—targeted at undercover investigation of 

agricultural operations—broadly criminalizes making 

misrepresentations to access an agricultural production 

facility as well as making audio and video recordings of the 

facility without the owner’s consent. Statutes of this genre—

dubbed by some as Ag-Gag laws—have been passed in 

several western states.4

This appeal highlights the tension between journalists’ 

claimed First Amendment right to engage in undercover 

investigations and the state’s effort to protect privacy and 

property rights in the agricultural industry. Idaho challenges 

the district court’s determination that four subsections of the 

statute—§ 18-7042(1)(a)–(d)—are unconstitutional on First 

Amendment and Equal Protection grounds. The Animal 

 3 Mercy for Animals, Burger King Cruelty–Video Exposes Horrific 

Animal Abuse at a Burger King Dairy Supplier, YouTube (Oct. 9, 2012), 

https://www.youtube.com/watch?v=lN_YcWOuVqk&oref=https

%3A%2F%2Fwww.youtube.com%2Fwatch%3Fv%3DlN_YcWOuVq

k&has_verified=1.

4 See Rita-Marie Cain Reid & Amber L. Kingery, Putting A Gag on 

Farm Whistleblowers: The Right to Lie and the Right to Remain Silent 

Confront State Agricultural Protectionism, 11 J. FOOD L. & POL’Y 31, 

35–36 (Spring 2015) (Montana, Kansas, North Dakota); Lewis Bollard, 

Ag-Gag: The Unconstitutionality of Laws Restricting Undercover 

Investigations on Farms, 42 Envtl. L. Rep. News & Analysis 10960, 

10963-66 (Oct. 2012) (Iowa, Utah).
8 ANIMAL LEGAL DEFENSE FUND V. WASDEN

League Defense Fund and various other animal rights 

organizations (collectively “ALDF”) urge us to uphold the 

district court’s injunction against enforcement of the statute, 

arguing that the law criminalizes whistleblower activity and 

undercover investigative reporting—a form of speech that 

has brought about important and widespread change to the 

food industry, an arena at the forefront of public interest.

Our analysis is framed by the Supreme Court’s decision 

in United States v. Alvarez, which addressed the First 

Amendment and false speech. 567 U.S. 709 (2012). We 

conclude that Idaho’s criminalization of misrepresentations 

to enter a production facility, § 18-7042(1)(a), and ban on 

audio and video recordings of a production facility’s 

operations, § 18-7042(1)(d), cover protected speech under 

the First Amendment and cannot survive constitutional 

scrutiny. In contrast, in accord with Alvarez, Idaho’s 

criminalization of misrepresentations to obtain records and 

secure employment are not protected speech under the First 

Amendment and do not violate the Equal Protection Clause. 

§ 18-7042(1)(b)–(c). Thus, we affirm in part and reverse in 

part the district court’s entry of summary judgment in favor 

of ALDF and vacate in part its permanent injunction against 

enforcement of the statute.

We are sensitive to journalists’ constitutional right to 

investigate and publish exposés on the agricultural industry. 

Matters related to food safety and animal cruelty are of 

significant public importance. However, the First 

Amendment right to gather news within legal bounds does 

not exempt journalists from laws of general applicability. 

For this reason, we uphold the provisions that fall within 

constitutional parameters, but strike down those limitations 

that impinge on protected speech.
ANIMAL LEGAL DEFENSE FUND V. WASDEN 9

Background

The Investigation

In 2012, an animal rights activist went undercover to get 

a job at an Idaho dairy farm and then secretly filmed ongoing 

animal abuse there. Mercy for Animals, an animal rights 

group, publicly released portions of the video, drawing 

national attention. The dairy farm owner responded to the 

video by firing the abusive employees who were caught on 

camera, instituting operational protocols, and conducting an 

animal welfare audit at the farm. Local law enforcement 

authorities launched an investigation that culminated in the 

conviction of one of the employees for animal cruelty. After 

the video’s release, the dairy farm owner and his family 

received multiple threats.

Idaho’s Interference with Agricultural Production 

Statute

In February 2014, Idaho enacted a law criminalizing 

“interference with agricultural production” to protect Idaho 

farmers. See Idaho Code § 18-7042. Relevant here, a person 

commits the crime of interference with agricultural 

production if the person knowingly:

(a) Is not employed by an agricultural 

production facility and enters an agricultural 

facility by force, threat, misrepresentation or 

trespass;

(b) Obtains records of an agricultural 

production facility by force, threat, 

misrepresentation or trespass;
10 ANIMAL LEGAL DEFENSE FUND V. WASDEN

(c) Obtains employment with an 

agricultural facility by force, threat, or 

misrepresentation with the intent to cause 

economic or other injury to the facility’s 

operations, livestock, crops, owners, 

personnel, equipment, buildings, premises, 

business interests or customers; [or]

(d) Enters an agricultural production 

facility that is not open to the public and, 

without the facility owner’s express consent 

or pursuant to judicial process or statutory 

authorization, makes audio or video 

recordings of the conduct of an agricultural 

production facility’s operations[.]5

Idaho Code § 18-7042(1)(a)–(d).

For purposes of this statute, the term “agricultural 

production” broadly covers “activities associated with the 

production of agricultural products for food, fiber, fuel and 

other lawful uses,” and other activities such as “[p]reparing 

land for agricultural production” and “[h]andling or applying 

pesticides . . . .”6 Id. § 18-7042(2)(a). The term “agricultural 

 5 The statute also criminalizes physical damage to an agricultural 

production facility’s operations, Idaho Code § 18-7042(1)(e), but that 

provision has not been challenged in this case.

6 In full, the law defines “agricultural production” to mean 

“activities associated with the production of agricultural products for 

food, fiber, fuel and other lawful uses,” including but not limited to: 

“construction, expansion, use, maintenance and repair of an agricultural 

production facility; preparing land for agricultural production; handling 

or applying pesticides, herbicides or other chemicals, compounds or 

substances labeled for insects, pests, crops, weeds, water or soil; 
ANIMAL LEGAL DEFENSE FUND V. WASDEN 11

production facility” is broad and covers “any structure or 

land, whether privately or publicly owned, leased or 

operated, that is being used for agricultural production.” Id.

§ 18-7042(2)(b).

Interference with agricultural production is a 

misdemeanor punishable by up to one year in prison or a fine 

not in excess of $5,000, or both. Id. § 18-7042(3). A person 

convicted of this crime must pay restitution to the victim in 

an amount of twice the damage resulting from violation of 

the statute. Id. § 18-7042(4). This damages payment 

includes a victim’s “economic loss[es].” Id. § 19-5304.

The legislative history reveals a complex series of 

motivations behind the statute. The bill was drafted by the 

Idaho Dairymen’s Association, a trade organization 

representing Idaho’s dairy industry. When the Association’s 

lawyer addressed legislators, he stated that one goal of the 

bill was “to protect Idaho farmers from wrongful 

interference. . . . Idaho farmers live and work spread out 

across the land where they’re uniquely vulnerable to 

interference by wrongful conduct.” Another goal was to 

shield the agricultural industry from undercover 

 planting, irrigating, growing, fertilizing, harvesting or producing 

agricultural, horticultural, floricultural and viticultural crops, fruits and 

vegetable products, field grains, seeds, hay, sod and nursery stock, and 

other plants, plant products, plant byproducts, plant waste and plant 

compost; breeding, hatching, raising, producing, feeding and keeping 

livestock, dairy animals, swine, furbearing animals, poultry, eggs, fish 

and other aquatic species, and other animals, animal products and animal 

byproducts, animal waste, animal compost, and bees, bee products and 

bee byproducts; processing and packaging agricultural products, 

including the processing and packaging of agricultural products into food 

and other agricultural commodities; [and] manufacturing animal feed.” 

Idaho Code § 18-7042(2)(a).
12 ANIMAL LEGAL DEFENSE FUND V. WASDEN

investigators who expose the industry to the “court of public 

opinion,” which destroys farmers’ reputations, results in 

death threats, and causes loss of customers.

At the time of the passage of this legislation, Idaho 

already had a law relating to interference with agricultural 

research—which has not been challenged—prohibiting 

knowingly damaging or obtaining property at an agricultural 

research facility with intent to hinder agricultural research; 

obtaining access to an agricultural research facility by 

misrepresentation with the intent to perform acts that would 

hinder agricultural research; entering an agricultural 

research facility with the intent to damage, alter, duplicate or 

obtain unauthorized possession of records or property 

related to the agricultural research; obtaining control over 

records or property of an agricultural research facility with 

intent to destroy such property without authorization of the 

facility; and releasing, stealing, or causing death or injury to 

an animal at an agricultural research facility. Idaho Code 

§ 18-7040(1). The Idaho Dairymen’s Association used this 

interference with agricultural research law as the framework 

for § 18-7041.

Legislators discussed the bill as protecting against two 

types of perceived harm to agricultural producers. First, 

lawmakers expressed concern about physical and 

operational damage caused by animal rights activists who 

gain access to agricultural production facilities. For 

example, some legislators discussed concerns about farm 

security and privacy. Others voiced concerns about the 

intentional destruction of crops, breeding records, and farm 

structures.

Lawmakers also discussed damage caused by 

investigative reporting: “One of the things that bothers me 

a lot about the undercover investigation [at the dairy], and 
ANIMAL LEGAL DEFENSE FUND V. WASDEN 13

the fact that there’s videos, well, we’re being tried and 

persecuted and prosecuted in the press.” Other legislators 

used similar language demonstrating hostility toward the 

release of these videos, and one supporter of the legislation 

dubbed animal rights groups as “terrorists” who “use media 

and sensationalism to attempt to steal the integrity of the 

producer and their reputation.” One legislator stated that the 

dairy industry’s reason behind the legislation was “[t]hey 

could not allow fellow members of the industry to be 

persecuted in the court of public opinion.” Another 

described these videos as used to “publicly crucify a 

company” and “as a blackmail tool.” Finally, one legislator 

indicated that if the video had not been published, she did 

not “think this bill would ever have surfaced.”

Procedural Background

In March 2014, ALDF filed suit against Lawrence G. 

Wasden as Attorney General of Idaho.7 The complaint 

alleges that the purpose and effect of the statute “are to stifle 

political debate about modern agriculture by 

(1) criminalizing all employment-based undercover 

investigations; and (2) criminalizing investigative 

journalism, whistleblowing by employees, or other 

expository efforts that entail images or sounds.” ALDF 

asserts violations of the First and Fourteenth Amendments. 

Although ALDF claimed preemption under the False Claims 

Act, Food Safety Modernization Act, and Clean Water Act, 

ALDF did not address those issues on appeal.

 7 ALDF also brought claims against Governor C.L. “Butch” Otter, 

but the district court dismissed him as a defendant. His dismissal is not 

challenged on appeal.
14 ANIMAL LEGAL DEFENSE FUND V. WASDEN

The district court granted ALDF’s motion for summary 

judgment on its First Amendment and Equal Protection 

claims. The district court concluded that the prohibitions on 

misrepresentations in § 18-7042(1)(a)–(c) (the 

“Misrepresentation Clauses”) criminalize speech protected 

by the First Amendment because Idaho could not “show the 

lies it seeks to prohibit cause any legally cognizable harm.” 

The court explained that the regulation on audio and video 

recordings under § 18-7042(1)(d) (the “Recordings Clause”) 

covers speech protected by the First Amendment and 

discriminates based on content because it criminalizes only 

“recordings of the conduct of an agricultural production 

facility’s operations.” The district court further reasoned 

that subsections (c) (misrepresentation to gain employment) 

and (d) (the Recordings Clause) discriminate on the basis of 

viewpoint because they “burden speech critical of the 

animal-agriculture industry.” Applying strict scrutiny to all 

challenged provisions, the district court resolved that even if 

the state’s interests in privacy and property were compelling, 

the restrictions were neither narrowly tailored nor the least 

restrictive means available to protect those interests.

The district court also determined that all four challenged 

subsections violate the Fourteenth Amendment’s Equal 

Protection Clause and fail rational basis review. The 

subsections fail on their face because they classify between 

whistleblowers in the agricultural industry and 

whistleblowers in other industries. The subsections also fail 

through their purpose because they were “animated by an 

improper animus toward animal welfare groups and other 

undercover investigators in the agricultural industry” and 

“further[] no other legitimate or rational purpose.” The court 

noted that there was “abundant evidence that the law was 

enacted with the discriminatory purpose of silencing animal 
ANIMAL LEGAL DEFENSE FUND V. WASDEN 15

rights activists who conduct undercover investigations in the 

agricultural industry.”

The district court deemed moot ALDF’s remaining 

claims and permanently enjoined enforcement of the 

challenged subsections. Idaho appeals the district court’s 

grant of summary judgment, which we review de novo. 

Roberts v. Continental Ins. Co., 770 F.2d 853, 855 (9th Cir. 

1985).

Analysis

I. The Misrepresentation Clauses: Idaho Code 

§ 18-7042(1)(a)–(c)

Subsections (a), (b) and (c) criminalize 

misrepresentations used to gain entry to agricultural 

production facilities, obtain records, and, under certain 

circumstances, secure employment. Relevant here, a person 

commits the crime of interference with agricultural 

production if the person knowingly:

(a) Is not employed by an agricultural 

production facility and enters an agricultural 

facility by force, threat, misrepresentation or 

trespass;

(b) Obtains records of an agricultural 

production facility by force, threat, 

misrepresentation or trespass; [or]

(c) Obtains employment with an 

agricultural facility by force, threat, or 

misrepresentation with the intent to cause 

economic or other injury to the facility’s 

operations, livestock, crops, owners, 
16 ANIMAL LEGAL DEFENSE FUND V. WASDEN

personnel, equipment, buildings, premises, 

business interests or customers[.]

Idaho Code § 18-7042(1)(a)–(c) (emphasis added).

Idaho argues that the “misrepresentation” component of 

these provisions regulates conduct induced by false 

statements of fact. ALDF counters that the subsections 

regulate pure speech, effectively prohibiting investigative 

reporters from accessing agricultural production facilities 

and therefore blocking reporters’ access to material for 

journalistic exposés.

The First Amendment, applied to states through the 

Fourteenth Amendment, prohibits laws “abridging the 

freedom of speech.” U.S. Const., amend I. Our first task is 

to determine whether the misrepresentations prohibited in 

the Idaho statute constitute speech protected by the First 

Amendment. See Cornelius v. NAACP Legal Def. Fund & 

Educ. Fund, Inc., 473 U.S. 788, 797 (1985). If the 

government’s actions do not implicate speech protected by 

the First Amendment, we “need go no further.” Id.

In Alvarez, the Supreme Court examined the Stolen 

Valor Act, 18 U.S.C. § 704 (“the Act”), a statute 

criminalizing false claims that the speaker had received the 

Congressional Medal of Honor. 567 U.S. 709 (2012). 

Justice Kennedy’s plurality opinion (joined by the Chief 

Justice and Justices Ginsburg and Sotomayor), as well as 

Justice Breyer’s concurring opinion (joined by Justice 

Kagan), concluded that the Act’s flat prohibition of such lies 

constituted an impermissible restriction on speech protected 

by the First Amendment. Id. at 729–30 (plurality opinion); 

id. at 739 (Breyer, J., concurring). In deciding that lying 

about receiving the Medal of Honor, without more, is 

protected speech, the plurality and concurrence “reject[ed] 
ANIMAL LEGAL DEFENSE FUND V. WASDEN 17

the notion that false speech should be in a general category 

that is presumptively unprotected.” Id. at 722 (plurality 

opinion); accord id. at 731–32 (Breyer, J., concurring).

However, neither the plurality nor the concurrence in 

Alvarez held that false statements are always protected under 

the First Amendment. Instead, as the plurality outlines, false 

speech may be criminalized if made “for the purpose of 

material gain” or “material advantage,” or if such speech 

inflicts a “legally cognizable harm.” Id. at 723, 719. The 

concurring justices agreed: statutes that criminalize falsities 

typically require proof of specific or tangible harm. Id. at 

734–36. We thus focus our attention on misrepresentations 

of the type singled out by the Court—false statements made 

for material gain or advantage or that inflict harm.

A. Idaho Code § 18-7042(1)(a): Entry by 

Misrepresentation

Subsection (a) criminalizes entry into an agricultural 

production facility “by force, threat, misrepresentation or 

trespass.” Notably, ALDF challenges only the 

“misrepresentation” prong of this subsection.8 And, as we 

note below, Idaho can easily address the problematic term 

by simply excising “misrepresentation” from this 

subsection. Thus, entry by force, threat or trespass would 

continue to be a criminal violation.

 8 The same is true of subsections (b) and (c); ALDF challenges only 

the misrepresentation prongs. In its opening brief, Idaho limits the 

definition of a “misrepresentation” to an affirmative misrepresentation—

not an omission: “[t]his means that the representations must be 

affirmative; omissions are insufficient. And they must be knowingly 

false. Mistakes or opinions will not support a prosecution.”
18 ANIMAL LEGAL DEFENSE FUND V. WASDEN

Guided by Alvarez, we conclude that subsection (a)’s 

misrepresentation provision regulates speech protected by 

the First Amendment. The targeted speech—a false 

statement made in order to access an agricultural production 

facility—cannot on its face be characterized as “made to 

effect a fraud or secure moneys or other valuable 

considerations.” Alvarez, 567 U.S. at 723 (plurality 

opinion). Nor can the misrepresentation provision be 

characterized as simply proscribing conduct. Like the 

statute in Alvarez, subsection (a) “seeks to control and 

suppress all false statements [related to access] in almost 

limitless times and settings. And it does so entirely without 

regard to whether the lie was made for the purpose of 

material gain.” Id. at 722–23 (plurality opinion). Unlike 

lying to obtain records or gain employment—which are 

associated with a material benefit to the speaker—lying to 

gain entry merely allows the speaker to cross the threshold 

of another’s property, including property that is generally 

open to the public. The hazard of this subsection is that it 

criminalizes innocent behavior, that the overbreadth of this 

subsection’s coverage is staggering, and that the purpose of 

the statute was, in large part, targeted at speech and 

investigative journalists.

Idaho’s argument that “the material gain to the person 

telling the lie is the entry to the property,” is not supported 

by any authority and does not establish how entry onto the 

property and material gain are coextensive. Under the 

statute, any misrepresentation to gain entry could net a 

criminal prosecution. Take, for example, a teenager who 

wants to impress his friends by obtaining a highly sought 

after reservation at an exclusive pop-up restaurant that is 

open to the public. If he were to call the restaurant and 

finagle a reservation in the name of his mother, a wellknown journalist, that would be a misrepresentation. If the 
ANIMAL LEGAL DEFENSE FUND V. WASDEN 19

restaurant offers up a reservation on the basis of the mother’s 

notoriety, granting a “license” to enter the premises and sit 

at a table, the teenager would be subject to punishment of up 

to one year in prison, a fine not to exceed $5,000, or both.

The teenager risks this potential despite the fact that he 

might leave before ordering, be discovered and removed by 

the manager, or his friends might not be impressed at all. In 

those instances, he would not receive even the secondary 

benefits of having gained access. In fact, all our teenager 

would have to do is enter the restaurant and he could be 

arrested because he gave a false name to the maître d' on the 

phone. This entry alone does not constitute a material gain, 

and without more, the lie is pure speech.9

Or the lunch could go off without a hitch. The restaurant 

is none the wiser, it gets paid for the meal, and loses nothing, 

but the teenager could still be subject to prosecution. Once 

again, the lie is pure speech.

The teenager does not necessarily even gain protection 

from trespass liability. Idaho’s criminal trespass law 

prohibits “[e]ntering without permission of the owner or the 

 9 We disagree with the district court’s suggestion that the only harm 

from gaining access to property by misrepresentation “would arise, say, 

from the publication of a story about the facility.” Such reasoning is 

problematic because it assumes, among other things, that a publication 

about the facility will necessarily harm the facility. At issue here is the

speech to gain entry to the facility, not the journalistic creation or 

speculative harm that may “arise” after entry. Focusing on such 

speculative harm sweeps in too many scenarios in which a person 

entering the property causes no harm to the property or its owner. This 

approach also places a value judgment on the reporting itself and 

undermines the First Amendment right to critique and criticize.
20 ANIMAL LEGAL DEFENSE FUND V. WASDEN

owner’s agent, upon the real property of another” but limits 

its application to property posted with “No Trespassing” 

signs that meet certain parameters. Idaho Code 

§ 18-7008(9). Thus, even if the dissent is correct that the 

teenager receives a license that would not otherwise have 

been granted, since in some circumstances the teenager may 

have entered the restaurant with no permission without 

trespassing, he gains little to nothing from his 

misrepresentation.10

Two earlier cases involving investigative reporters and 

trespass in the First Amendment context foreshadowed the 

decision in Alvarez, albeit in slightly different scenarios. 

The Fourth Circuit in Food Lion, Inc. v. Capital Cities/ABC, 

Inc., 194 F.3d 505 (1999), and the Seventh Circuit in 

Desnick v. American Broadcasting Companies, Inc., 44 F.3d 

1345 (1995), examined whether plaintiffs in a civil action 

could maintain a trespass claim against journalists for 

misrepresenting their identities. Both courts invalidated the 

trespass claim predicated on the misrepresentations because 

“the entry was not invasive in the sense of infringing the kind 

of interest of the plaintiffs that the law of trespass protects; 

it was not an interference with the ownership or possession 

of land.” Desnick, 44 F.3d at 1353; Food Lion, 194 F.3d at 

518 (“[I]f we turned successful resume fraud into trespass, 

we would not be protecting the interest underlying the tort of 

trespass—the ownership and peaceable possession of 

 10 The dissent’s citation to Green v. Beaver State Contractors, Inc., 

472 P.2d 307, 307 (Idaho 1970) is misplaced. This is not the case of the 

hapless teenager and has nothing to do with the First Amendment and 

entry upon property. Rather, it is a civil contract matter and the 

question—left unanswered—was whether there were any civil damages 

for trespass by a contractor who traversed land without authorization.
ANIMAL LEGAL DEFENSE FUND V. WASDEN 21

land.”).11 Put differently, “consent to an entry is often given 

legal effect even though the entrant has intentions that if 

known to the owner of the property would cause him for . . . 

lawful reasons to revoke his consent” because that entry does 

not infringe upon the specific interests trespass seeks to 

protect. Desnick, 44 F.3d at 1351. This language is 

prescient in its tracking of Alvarez’s reasoning: some lies 

quite simply do not inflict any material or legal harm on the 

deceived party. See Alvarez, 567 U.S. at 718–19 (plurality 

opinion); see also id. at 736 (Breyer, J., concurring) (statutes 

properly prohibiting false statements are those with 

“limitations of context, or requirements of proof of injury” 

to narrow the prohibition to “a subset of lies where specific 

harm is more likely to occur” and not “where harm is 

unlikely or the need for the prohibition is small.”).

Re-visiting our teenager, we have already established 

that he is not guilty of ordinary criminal trespass in the 

absence of a “No Trespassing” sign. However, as with a 

journalist or even a curiosity seeker who dissembles to get 

access to the property, under the challenged Idaho law, the 

teenager would be subject to criminal prosecution for 

nothing more than what can only be characterized as a fib. 

Thus, the misrepresentation provision of subsection (a) 

regulates protected speech while “target[ing] falsity and 

nothing more.” Alvarez, 567 U.S. at 719 (plurality opinion). 

Such regulation is subject to the “most exacting scrutiny.” 

Id. at 724 (quoting Turner Broad. Sys., Inc. v. FCC, 512 U.S. 

622, 642 (1994)). Idaho’s chosen restriction on speech must 

 11 On another claim, the Fourth Circuit determined that the reporters 

“committed trespass by breaching their duty of loyalty” as employees of 

Food Lion. Food Lion, 194 F.3d at 518. Idaho did not raise any similar 

arguments here and, therefore, this portion of the Fourth Circuit’s 

holding is inapposite to our decision.
22 ANIMAL LEGAL DEFENSE FUND V. WASDEN

be “actually necessary” to achieve a compelling government 

interest, and there must be a “direct causal link between the 

restriction imposed and the injury to be prevented.” Id. at 

725. Subsection (a) cannot survive this high bar.

Even assuming Idaho has a compelling interest in 

regulating property rights and protecting its farm industry, 

criminalizing access to property by misrepresentation is not 

“actually necessary” to protect those rights. If, as Idaho 

argues, its real concern is trespass, then Idaho already has a 

prohibition against trespass that does not implicate speech in 

any way. If instead, as a number of the legislators made clear 

and the dairy lobby underscored, the statute was intended to 

quash investigative reporting on agricultural production 

facilities, then the speech aspect of the statute prohibiting 

misrepresentations is even more problematic. The focus of 

the statute to avoid the “court of public opinion” and 

treatment of investigative videos as “blackmail” cannot be 

squared with a content-neutral trespass law.

It is troubling that criminalization of these 

misrepresentations opens the door to selective 

prosecutions—for example, pursuing the case of a journalist 

who produces a 60 Minutes segment about animal cruelty 

versus letting the misrepresentation go unchecked in the case 

of the teenager. As Justice Breyer aptly noted in his 

concurrence,

the pervasiveness of false statements, made 

for better or for worse motives, made 

thoughtlessly or deliberately, made with or 

without accompanying harm, provides a 

weapon to a government broadly empowered 

to prosecute falsity without more. And those 

who are unpopular may fear that the 

government will use that weapon selectively, 
ANIMAL LEGAL DEFENSE FUND V. WASDEN 23

say, by prosecuting a [politically unpopular 

individual who makes false claims], while 

ignoring members of other political groups 

who might make similar false claims.

Id. at 734. In this case, the targeted group—journalists and 

investigative reporters—could also face enhanced penalties. 

Violating Idaho’s criminal trespass statute could result in up 

to six months in prison, a fine not in excess of $1,000, or 

both, see Idaho Code § 18-7011(1), whereas the penalty 

under the agricultural protection provision, § 18-7042, could 

be up to one year in prison, a fine not in excess of $5,000, or 

both.

We are also unsettled by the sheer breadth of this 

subsection given the definitions of “agricultural production 

facility” and “agricultural production.” Id. § 18-7042(2)(a), 

(b). Applying these definitions, the subsection reaches 

misrepresentations not only in the context of a large-scale 

dairy facility or cattle feedlot, but also grocery stores, garden 

nurseries, restaurants that have an herb garden or grow their 

own produce, llama farms that produce wool for weaving, 

beekeepers, a chicken coop in the backyard, a field 

producing crops for ethanol, and hardware stores, to name a 

few. See Alvarez, 567 U.S. at 722 (plurality opinion) 

(criticizing the Act for having “sweeping, quite 

unprecedented reach”).

The subsection’s reach is particularly worrisome 

because many of the covered entities are, unlike large-scale 

dairy facilities, places of business that are open to the public. 

Imagine a situation in which an Albertsons grocery store 

opens early to the first one hundred affinity cardholders to 

visit the new, spectacular food court. Given the expansive 

definition of “agricultural production,” the Albertsons store 
24 ANIMAL LEGAL DEFENSE FUND V. WASDEN

would be covered under the statute as a facility where 

agricultural products are “process[ed] and package[ed] . . . 

into food.” An enterprising person with no Albertsons card, 

but representing otherwise, or even someone using a friend’s 

Albertsons card, falls prey to the statute simply because he 

wants to see the food-court extravaganza. Under subsection 

(a), our protagonist would be guilty of a misdemeanor and 

could be punished by up to one year in prison, a fine not in 

excess of $5,000, or both—not to mention a potential 

restitution award. Idaho Code § 18-7042(3), (4). The same 

can be said for a restaurant critic who goes undercover, 

claiming to be a repeat customer in order to get a prime table 

from which to review the restaurant’s food, service, and 

ambiance. In these scenarios, the statute punishes speech 

where there is no fraud, no gain, and no valuable

consideration.

The limitation that a misrepresentation must be 

“knowing[]” does not eliminate the threat posed by this 

subsection’s staggering reach. The fact that the subsection 

regulates speech related to property far beyond a classic 

agricultural facility would invariably result in the chilling of 

lawful speech. Indeed, “a speaker might still be worried 

about being prosecuted for a careless false statement, even 

if he does not have the intent required to render him liable.” 

Alvarez, 567 U.S. at 736 (Breyer, J., concurring) (applying 

intermediate scrutiny).

Nor is this subsection the “least restrictive means among 

available, effective alternatives.” Ashcroft v. ACLU, 542 

U.S. 656, 666 (2004). We see no reason, and Idaho has not 

offered any, why the state could not narrow the subsection 

by requiring specific intent or by limiting criminal liability 

to statements that cause a particular harm. Idaho did exactly 

that with subsection (c), which covers misrepresentation 
ANIMAL LEGAL DEFENSE FUND V. WASDEN 25

“with the intent to cause economic or other injury.” It is no 

surprise that after the Supreme Court’s decision in Alvarez, 

Congress amended the Stolen Valor Act to criminalize only 

those “[w]hoever, with intent to obtain money, property, or 

other tangible benefit, fraudulently hold[] oneself out to be 

a recipient” of a qualifying medal. 18 U.S.C. § 704(b) 

(2013) (emphasis added). Such a limitation would still 

effectuate agricultural production facility owners’ property 

rights while complying with Alvarez’s relatively 

straightforward First Amendment requirements.

The reach of subsection (a) is so broad that it gives rise 

to suspicion that it may have been enacted with an 

impermissible purpose. See Elena Kagan, Private Speech, 

Public Purpose: The Role of Governmental Motive in First 

Amendment Doctrine, 63 U. Chi. L. Rev. 413, 455 (1996) 

(“At a certain point—when the asserted interest is 

insubstantial or when it does not fit the scope of the 

challenged regulation—the usual presumption of proper 

purpose topples; there is reason, then, to think that the law, 

though content neutral, has been tainted by impermissible 

purpose.”). Our suspicion is not eased after reading the 

legislative history. The record reflects that the statute was 

partly motivated to protect members of the agricultural 

industry from “persecut[ion] in the court of public opinion,” 

and journalists who use exposés to “publicly crucify a 

company.” Although, for Equal Protection Clause purposes, 

we need not decide whether animus motivated this 

subsection, we do not ignore that a vocal number of 

supporters were less concerned with the protection of 

property than they were about protecting a target group from 

critical speech, which adds to our skepticism that the 

provision survives the “exacting scrutiny” required under 

Alvarez. See FCC v. League of Women Voters of Cal., 468 

U.S. 364, 387 n.18 (1984) (expressing skepticism about the 
26 ANIMAL LEGAL DEFENSE FUND V. WASDEN

motivation behind a bill when some supporters were 

concerned with protecting themselves from critical speech).

In the same vein, if intermediate scrutiny is the standard, 

as Justice Breyer advocates in Alvarez, then this subsection 

would still fail. Subsection (a) criminalizes speech that 

inflicts no “specific harm” on property owners, “ranges very 

broadly,” and risks significantly chilling speech that is not 

covered under the statute. Alvarez, 567 U.S. at 736–37 

(Breyer J., concurring). Additionally, it is “possible 

substantially to achieve the Government’s objective in less 

burdensome ways” with “a more finely tailored statute.” Id.

at 737. Even under intermediate scrutiny, the subsection 

“works disproportionate constitutional harm.” Id. at 739.

There is, of course, an easy fix to this First Amendment 

problem: simply strike the word “misrepresentation” from 

the subsections. Idaho explicitly invites this result in its 

discussion of the statute’s severability clause, and ALDF’s 

surgical challenge indirectly endorses this remedy. Under 

Idaho law, an invalid portion of a statute may be severed 

where “part of a statute . . . is unconstitutional and yet is not 

an integral or indispensable part of the measure.” Voyles v. 

City of Nampa, 548 P.2d 1217, 1220 (Idaho 1976). Because 

the proscription on misrepresentations is neither integral nor 

indispensable to the subsection’s goal of protecting property 

rights, the offending term “misrepresentation” should be 

stricken, leaving the remainder of the subsection intact. In 

light of this resolution, we need not analyze subsection (a) 

under the Equal Protection Clause.
ANIMAL LEGAL DEFENSE FUND V. WASDEN 27

B. Idaho Code § 18-7042(1)(b): Obtaining Records 

by Misrepresentation

Subsection (b)—which criminalizes obtaining records of 

an agricultural production facility by misrepresentation12—

protects against a “legally cognizable harm associated with 

a false statement” and therefore survives constitutional 

scrutiny under Alvarez. 567 U.S. at 719. Alvarez highlights 

that a false statement made in association with a legally 

cognizable harm or for the purpose of material gain is not 

protected. Id. at 719, 723. Unlike false statements made to 

enter property, false statements made to actually acquire 

agricultural production facility records inflict a property 

harm upon the owner, and may also bestow a material gain 

on the acquirer.

This subsection is aimed at conduct—obtaining 

records—that has long been prohibited in Idaho. For 

decades, Idaho has lawfully proscribed similar types of 

conduct that infringe on property rights. For example, Idaho 

criminalizes conversion, which involves “any distinct act of 

dominion wrongfully exerted over another’s personal 

property in denial or inconsistent with his rights therein.” 

Wiseman v. Schaffer, 768 P.2d 800, 803 (Idaho 1989) 

(citation omitted); see also Idaho Code §§ 18-2403(3), 

18-7001(1). Idaho also criminalizes theft by false pretenses, 

which involves “a wrongful taking, obtaining or withholding 

of another’s property” by conduct constituting “obtaining 

property, money or labor under false pretenses.” Idaho Code 

§ 18-2403(2); State v. Larsen, 286 P.2d 646, 648 (Idaho 

 12 We read the statute to cover records obtained from the agricultural 

production facility and not as implicating records obtained via Idaho’s 

Public Records Act, Idaho Code § 74-101 et seq., or other lawful 

avenues.
28 ANIMAL LEGAL DEFENSE FUND V. WASDEN

1955) (citation omitted) (“[a] false pretense may consist in 

any act, word, symbol, or token calculated and intended to 

deceive”). Larceny, which involves the “fraudulent 

obtaining of personal property, and carrying that property 

away with the intent permanently to deprive the owner 

thereof,” is also prohibited. State v. Jesser, 501 P.2d 727, 

736 & n.29 (Idaho 1972). Criminalizing the obtaining of 

records by misrepresentation is one of a variety of Idaho 

statutes that protect property rights. Obtaining an 

agricultural production facility’s records by 

misrepresentation inflicts a “legally cognizable harm” by 

impairing an agricultural production facility owner’s ability 

to control who can assert dominion over, and take possession 

of, his property. Additionally, obtaining records through 

misrepresentation may also infringe on other rights by, for 

example, exposing proprietary formulas, trade secrets, or 

other confidential business information to unwanted parties. 

See Idaho Code § 48-801 et seq. (prohibiting 

misappropriation of trade secrets).

The legislative history illustrates how such conduct has 

harmed, and threatens to harm, agricultural production 

facility owners. For example, legislators expressed general 

concern about damage to breeding papers, and one legislator 

noted an instance in which the breeding papers of a mink 

ranch were “tossed” into a “pile,” “damag[ing] the whole 

operation.” The agricultural industry also expressed concern 

about the theft of facility records, particularly when such 

theft leads to the release of a facility’s proprietary and 

confidential information, including divulging locations of 

genetically engineered crops or valuable research documents 

for sale to competitors. Although some legislators wanted 

to silence investigative journalists reporting on the 

agricultural industry, the full legislative history shows that a 
ANIMAL LEGAL DEFENSE FUND V. WASDEN 29

legitimate purpose for enacting the subsection was to prevent 

harm from damaged or stolen records.

Obtaining records may also bestow a “material gain” on 

the speaker. See Alvarez, 567 U.S. at 723 (plurality opinion). 

The records may contain confidential information, such as 

breeding histories of animals and livestock, and other 

proprietary research and development information valuable 

to those in the industry. Once disclosed, this information 

may lose its confidential or proprietary research status.

Acquiring records by misrepresentation results in 

something definitively more than does entry onto land—it 

wreaks actual and potential harm on a facility and bestows 

material gain on the fibber. So unlike subsection (a), 

subsection (b) does not regulate constitutionally protected 

speech, and does not run afoul of the First Amendment.13

Nor does subsection (b) violate the Equal Protection 

Clause. The district court determined that the statute was 

“animated by an improper animus toward animal welfare 

groups and other undercover investigators in the agricultural 

industry” and could not survive rational basis review. We 

agree that animus was one of the motivating factors but 

disagree as to the conclusion.

Legislation is generally presumed to be valid and will be 

sustained under the Equal Protection Clause “if the 

classification drawn by the statute is rationally related to a 

legitimate state interest.” City of Cleburne v. Cleburne 

Living Ctr., 473 U.S. 432, 440 (1985). However, neither “a 

 13 Because we determine that subsections (b) and (c) do not burden 

speech protected by the First Amendment, the subsections do not 

discriminate on the basis of the fundamental right to speech.
30 ANIMAL LEGAL DEFENSE FUND V. WASDEN

bare . . . desire to harm a politically unpopular group” nor 

“negative attitude[s]” or “fears” about that group constitute 

a legitimate government interest for the purpose of this 

review. Id. at 448. When a law exhibits a desire to harm an 

unpopular group, courts will often apply a “more searching” 

application of rational basis review. Lawrence v. Texas, 539 

U.S. 558, 580 (2003) (O’Connor, J., concurring); see also 

Cleburne, 473 at 448–50; U.S. Dep’t of Agric. v. Moreno, 

413 U.S. 528, 535–38 (1973). When the politically 

unpopular group is not a traditionally suspect class, a court 

may strike down the challenged statute under the Equal 

Protection Clause “if the statute serves no legitimate 

governmental purpose and if impermissible animus toward 

an unpopular group prompted the statute’s enactment.” 

Mountain Water Co. v. Mont. Dep’t of Pub. Serv. 

Regulation, 919 F.2d 593, 598 (9th Cir. 1990) (emphasis 

added); Moreno, 413 U.S. at 534.

We invoke searching scrutiny here. Although animus 

towards particular speech by reporters and activists was one 

factor driving Idaho’s decision to pass the statute, to strike 

down the law, we must also determine whether the law 

serves “no legitimate governmental purpose.” Mountain 

Water Co., 919 F.2d at 598. The overall purpose of § 18-

7042 is to protect agricultural production facilities from 

interference by wrongful conduct. As noted, the legislative 

history relevant to subsection (b) describes situations in 

which agricultural production facilities have been, or may 

be, harmed as a result of a misrepresentation leading to the 

acquisition of records. Idaho’s desire to protect against harm 

relating to an agricultural production facility’s most 

sensitive information—affecting both property rights and 

privacy interests—is a legitimate government interest. It 

also bears noting that the penalty provisions for falsely 

obtaining records under this statute are in line with the 
ANIMAL LEGAL DEFENSE FUND V. WASDEN 31

penalties in Idaho’s other statutes relating to records and 

property offenses. See, e.g., Idaho Code §§ 18-2403(2)(d), 

18-2407, 18-2408 (theft by false promise); 18-7001 

(malicious injury to property); 48-803 (misappropriation of 

trade secrets). Subsection (b) does not offend the Equal 

Protection Clause because it does not rest exclusively on an 

“irrational prejudice” against journalists and activists. 

Cleburne, 473 U.S. at 450.

C. Idaho Code § 18-7042(1)(c): Obtaining 

Employment by Misrepresentation

Subsection (c) criminalizes knowingly “[o]btain[ing] 

employment with an agricultural production facility by . . . 

misrepresentation with the intent to cause economic or other 

injury” to the facility’s operations, property, or personnel. 

Almost as though the Idaho legislature drafted this provision 

with Alvarez by its side, this subsection follows the Supreme 

Court’s guidance as to what constitutes a lie made for 

material gain. Indeed, the plurality in Alvarez explicitly

stated that “[w]here false claims are made to effect a fraud 

or secure moneys or other valuable considerations, say offers 

of employment, it is well established that the Government 

may restrict speech without affronting the First 

Amendment.” 567 U.S. at 723 (emphasis added). The 

misrepresentations criminalized in subsection (c) fall 

squarely into this category of speech.

Additionally, subsection (c) limits criminal liability to 

only those who gain employment by misrepresentation and

who have the intent to cause economic or other injury to the 

agricultural production facility, which further cabins the 

prohibition’s scope. Given this clear limitation, we disagree 

with ALDF that the statute would reach “a person who 

overstates her education or experience to get a job for which 

she otherwise would not have qualified, whether the person 
32 ANIMAL LEGAL DEFENSE FUND V. WASDEN

is an undercover investigator or not,” because the requisite 

intent to injure would not be satisfied. On the other hand, 

this subsection would apply to an employee hired with an 

intent to harm the employer, which, as Idaho points out, is a 

breach of the covenant of good faith and fair dealing that is 

implied in all employment agreements in Idaho. Jenkins v. 

Boise Cascade Corp., 108 P.3d 380, 389–90 (Idaho 2005); 

cf. Shackelford v. Shirley, 948 F.2d 935, 938 (5th Cir. 1991) 

(“[T]hreats made with specific intent to injure and focused 

on a particular individual easily fall into that category of 

speech deserving of no first amendment protection.”).

Although it may be true that “[t]he goal of undercover 

employment-based investigations is not to ‘secure moneys 

or other valuable considerations’ for the investigator, but 

rather to expose threats to the public,” ALDF ignores that the 

Supreme Court singled out offers of employment and that 

these undercover investigators are nonetheless paid by the 

agricultural production facility as part of their employment. 

Of course, this does not mean that every investigative 

reporter hired under false pretenses intends to harm the 

employer. That is a critical element that requires proof. 

We are also not persuaded by ALDF’s arguments that the 

statute was enacted solely to suppress a specific subject 

matter or viewpoint. See R.A.V. v. City of St. Paul, 505 U.S. 

377, 384 (1992). We reject ALDF’s argument that the 

statute’s restitution clause is a way to punish journalists and 

whistleblowers for printing exposés, because we do not 

interpret the restitution clause to include reputational and 

publication damages. See Hustler Magazine, Inc. v. Falwell, 

485 U.S. 46, 52 (1988).

The restitution clause requires a court to order a 

defendant “to make restitution to the victim of the offense 

. . . in an amount equal to twice the value of the damage 
ANIMAL LEGAL DEFENSE FUND V. WASDEN 33

resulting from the violation” of the statute. Idaho Code 

§§ 18-7042(4), 19-5304. Restitution is made for the 

“economic loss” to the victim. Idaho Code § 19-5304(1)(a). 

This includes “the value of property taken, destroyed, 

broken, or otherwise harmed, lost wages, and direct out-ofpocket losses or expenses, such as medical expenses 

resulting from the criminal conduct.” Id. It does not include 

“less tangible damage such as pain and suffering, wrongful 

death or emotional distress.” Id.

That the statute excludes “less tangible damage” such as 

emotional distress indicates that reputational damages would 

not be considered an “economic loss,” and we are not aware 

of a case suggesting otherwise. Rather, Idaho case law 

defines “economic loss” as “tangible out-of-pocket loss” 

which the victim “actually suffers.” State v. Straub, 292 

P.3d 273, 280 (Idaho 2013). The restitution clause focuses 

on actual, quantifiable economic loss as opposed to abstract 

damages such as reputational harm. See id. In the absence 

of Idaho case law to the contrary, we read the statute’s 

restitution clause as excluding reputational and publication 

damages.14 See Berger v. City of Seattle, 569 F.3d 1029, 

1046 (9th Cir. 2009) (en banc) (“[W]here an 

unconstitutionally broad statute is readily subject to a 

narrowing construction that would eliminate its 

constitutional deficiencies, we accept that construction.”) 

(internal quotation marks omitted).

 14 On a more basic level, we cannot see how the restitution provision 

is inevitably viewpoint based. Restitution is pegged to economic loss, 

not to the view expressed, which could be a positive puff piece or a 

negative critique. The issue is documented loss, not viewpoint.
34 ANIMAL LEGAL DEFENSE FUND V. WASDEN

The district court erred by granting summary judgment 

on this ground.

For the same reasons as provided in our analysis of 

subsection (b), subsection (c) does not violate the Equal 

Protection Clause because it serves a “legitimate 

governmental purpose.” Mountain Water Co., 919 F.2d at 

598. The same property and privacy concerns apply here—

employees have access to limited areas of an agricultural 

production facility and other confidential information that 

may lead to destruction or serious harm—and Idaho has a 

legitimate governmental purpose in restricting such 

employment-seeking misrepresentations. This result 

follows from Alvarez. By establishing that 

misrepresentations to “secure . . . offers of employment” 

may be restricted, the Court implicitly recognized that a 

government interest exists in restricting such speech. 

Alvarez, 567 U.S. at 723. Thus, this subsection has a 

legitimate governmental purpose beyond an “irrational 

prejudice” against journalists and activists. City of 

Cleburne, 473 U.S. at 450.

II. The Recordings Clause—Idaho Code 

§ 18-7042(1)(d)

We now turn to the Recordings Clause, which prohibits 

a person from entering a private agricultural production 

facility and, without express consent from the facility owner, 

making audio or video recordings of the “conduct of an 

agricultural production facility’s operations.” Idaho Code 

§ 18-7042(1)(d). The Recordings Clause regulates speech 

protected by the First Amendment and is a classic example 

of a content-based restriction that cannot survive strict 

scrutiny.
ANIMAL LEGAL DEFENSE FUND V. WASDEN 35

We easily dispose of Idaho’s claim that the act of 

creating an audiovisual recording is not speech protected by 

the First Amendment. This argument is akin to saying that 

even though a book is protected by the First Amendment, the 

process of writing the book is not. Audiovisual recordings 

are protected by the First Amendment as recognized 

“organ[s] of public opinion” and as a “significant medium 

for the communication of ideas.” Joseph Burstyn, Inc. v. 

Wilson, 343 U.S. 495, 501 (1952) (extending First 

Amendment protection to movies). Indeed, “[w]e live, 

relate, work, and decide in a world where image capture 

from life is routine, and captured images are part of ongoing 

discourse, both public and private.” Seth F. Kreimer, 

Pervasive Image Capture and the First Amendment: 

Memory, Discourse, and the Right to Record, 159 U. Pa. L. 

Rev. 335, 337 (Jan. 2011).

It is no surprise that we have recognized that there is a 

“First Amendment right to film matters of public interest.” 

Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995). 

It defies common sense to disaggregate the creation of the 

video from the video or audio recording itself. The act of 

recording is itself an inherently expressive activity; 

decisions about content, composition, lighting, volume, and 

angles, among others, are expressive in the same way as the 

written word or a musical score.

Rejecting an argument remarkably similar to Idaho’s 

pitch here, we observed that

neither the Supreme Court nor [the Ninth 

Circuit] has ever drawn a distinction between 

the process of creating a form of pure speech 

(such as writing or painting) and the product 

of these processes (the essay or artwork) in 

terms of the First Amendment protection 
36 ANIMAL LEGAL DEFENSE FUND V. WASDEN

afforded. . . . The process of expression 

through a medium has never been thought so 

distinct from the expression itself that we 

could disaggregate Picasso from his brushes 

and canvas, or that we could value Beethoven 

without the benefit of strings and woodwinds. 

In other words, we have never seriously 

questioned that the processes of writing 

words down on paper, painting a picture, and 

playing an instrument are purely expressive 

activities entitled to full First Amendment 

protection.

Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1061–

62 (9th Cir. 2010) (determining that the tattooing process is 

purely expressive activity protected by the First 

Amendment); see also ACLU v. Alvarez, 679 F.3d 583, 595 

(7th Cir. 2012) (“The act of making an audio or audiovisual 

recording is necessarily included within the First 

Amendment’s guarantee of speech.”); Fields v. City of 

Philadelphia, 862 F.3d 353, 358 (3d Cir. 2017) (“The First 

Amendment protects actual photos, videos, and recordings . 

. . and for this protection to have meaning the Amendment 

must also protect the act of creating that material.”) 

(emphasis added). Because the recording process is itself 

expressive and is “inextricably intertwined” with the 

resulting recording, the creation of audiovisual recordings is 

speech entitled to First Amendment protection as purely 

expressive activity. See Anderson, 621 F.3d at 1062.

The Recordings Clause prohibits the recording of a 

defined topic—“the conduct of an agricultural production 

facility’s operations.” This provision is an “obvious” 

example of a content-based regulation of speech because it 

“defin[es] regulated speech by particular subject matter.” 
ANIMAL LEGAL DEFENSE FUND V. WASDEN 37

Reed v. Town of Gilbert, 135 S. Ct. 2218, 2227 (2015); see 

also United States v. Stevens, 559 U.S. 460, 468 (2010) (a 

statute was content-based when it prohibited “visual [and] 

auditory depiction[s] . . . depending on whether they depict 

conduct in which a living animal is intentionally harmed” 

(alterations in original)). A regulation is content-based when 

it draws a distinction “on its face” regarding the message the 

speaker conveys or “when the purpose and justification for 

the law are content based.” Reed, 135 S. Ct. at 2228. The 

Recordings Clause checks both boxes. It would permit 

filming a vineyard’s art collection but not the winemaking 

operation. Likewise, a videographer could record an afterhours birthday party among co-workers, a farmer’s antique 

car collection, or a historic maple tree but not the animal 

abuse, feedlot operation, or slaughterhouse conditions.

Problematically, Idaho has effectively eliminated the 

subject matter of any audio and visual recordings of 

agricultural operations made without consent and has 

therefore “prohibit[ed] public discussion of an entire topic.” 

In re Nat’l Sec. Letter, 863 F.3d 1110, 1122 (9th Cir. 2017) 

(internal quotation marks omitted). And, because the 

Recordings Clause prohibits the filming of agricultural 

“operations” but nothing else, its application explicitly 

pivots on the content of the recording; in other words, only 

by viewing the recording can the Idaho authorities make a 

determination about criminal liability. See League of 

Women Voters, 468 U.S. at 383 (a statute is content-based 

when “enforcement authorities must necessarily examine the 

content of the message” to determine whether it complies 

with the statute). Here, the statute depends not just on 

“where they say” the message but also—critically—“on 

what they say.” McCullen v. Coakley, 134 S. Ct. 2518, 2531 

(2014).
38 ANIMAL LEGAL DEFENSE FUND V. WASDEN

As a content-based regulation, the Recordings Clause is 

constitutional only if it withstands strict scrutiny, meaning it 

“is necessary to serve a compelling state interest” and “is 

narrowly drawn to achieve that end.” Perry Educ. Ass’n v. 

Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983). Strict 

scrutiny is “an exacting test” requiring “some pressing 

public necessity, some essential value that has to be 

preserved; and even then the law must restrict as little speech 

as possible to serve the goal.” Turner, 512 U.S. at 680. As 

with the Misrepresentation Clauses, Idaho asserts that the 

Recordings Clause protects both property and privacy 

interests. Even assuming a compelling government interest, 

Idaho has not satisfied the narrow tailoring requirement 

because the statute is both under-inclusive and overinclusive.

Prohibiting only “audio or video recordings,” but saying 

nothing about photographs, is suspiciously under-inclusive. 

City of Ladue v. Gilleo, 512 U.S. 43, 51 (“[T]hat a regulation 

of speech may be impermissibly underinclusive is firmly 

grounded in basic First Amendment principles.”). Why the 

making of audio and video recordings of operations would 

implicate property or privacy harms, but photographs of the 

same content would not, is a mystery. This distinction defies 

the old adage that “a picture is worth a thousand words.”

Nor has Idaho explained how limiting the filming of 

operations, but nothing else, effectuates its interests better 

than eliminating all audio and video recordings at 

agricultural production facilities. Presumably, for example, 

an unauthorized recording of the agricultural production 

facility’s buildings would still implicate Idaho’s concerns 

about property, and the unauthorized filming of an employee 

birthday party would implicate concerns about privacy. 

Without some legitimate explanation, we are left to conclude 
ANIMAL LEGAL DEFENSE FUND V. WASDEN 39

that Idaho is singling out for suppression one mode of 

speech—audio and video recordings of agricultural 

operations—to keep controversy and suspect practices out of 

the public eye. Reed, 135 S. Ct. at 2229 (content-based laws 

lend themselves to use for “invidious, thought-control 

purposes”). The district court aptly noted that “[t]he 

recording prohibition gives agricultural facility owners veto 

power, allowing owners to decide what can and cannot be 

recorded, effectively turning them into state-backed censors 

able to silence unfavorable speech about their facilities.”

The Recordings Clause is also over-inclusive and 

suppresses more speech than necessary to further Idaho’s 

stated goals of protecting property and privacy. See Lone 

Star Security and Video, Inc. v. City of Los Angeles, 827 F.3d 

1192, 1197 (9th Cir. 2016). Because there are “various other 

laws at [Idaho’s] disposal that would allow it to achieve its 

stated interests while burdening little or no speech,” the law 

is not narrowly tailored. Comite de Jornaleros de Redondo 

Beach v. City of Redondo Beach, 657 F.3d 936, 949 (9th Cir. 

2011) (en banc) (applying intermediate scrutiny). For 

example, agricultural production facility owners can 

vindicate their rights through tort laws against theft of trade 

secrets and invasion of privacy. Idaho Code § 48-801 et seq. 

(prohibiting misappropriation of trade secrets); Taylor v. 

K.T.V.B., Inc., 525 P.2d 984, 985 (Idaho 1974) (outlining the 

invasion of privacy torts). To the extent the legislators 

expressed concern that fabricated recordings of animal abuse 

would invade privacy rights, the victims can turn to 

defamation actions for recourse. Even still, as Alvarez points 

out, “[t]he remedy for speech that is false is speech that is 

true”—and not, as Idaho would like, the suppression of that 

speech. 567 U.S. at 727.
40 ANIMAL LEGAL DEFENSE FUND V. WASDEN

For these reasons, the Recordings Clause cannot survive 

First Amendment scrutiny and is therefore unconstitutional. 

In light of this result, we need not analyze the Recordings 

Clause under the Equal Protection Clause.

In sum, we affirm the district court’s grant of summary 

judgment with respect to §§ 18-7042(1)(a) and (d). We 

reverse the district court’s grant of summary judgment with 

respect to §§ 18-7042(1)(b) and (c). The permanent 

injunction should be modified accordingly.

AFFIRMED IN PART, REVERSED IN PART.

Each party shall bear its own costs on appeal.

BEA, Circuit Judge, dissenting in part and concurring in 

part:

The majority apparently believes that unconsented entry1

upon land is not a “legally cognizable harm” where it 

“merely allows the speaker to cross the threshold of 

another’s property.” But as a matter of the applicable Idaho 

law, such an unconsented entry constitutes a common law 

trespass, which is a legally cognizable harm—one from 

which damages are presumed to flow naturally. Taysom v. 

 1 Fraud or misrepresentation vitiates consent. Green v. Beaver State 

Contractors, Inc., 472 P.2d 307, 307 (Idaho 1970) (finding trespass 

where defendant obtained permission to cross plaintiff’s land by 

misrepresentation); Restatement (Second) of Torts § 173 (1965); see also 

id., cmt. b (“A conscious misrepresentation as to the purpose for which 

admittance to the land is sought, may be a fraudulent misrepresentation 

of a material fact.”).
ANIMAL LEGAL DEFENSE FUND V. WASDEN 41

Taysom, 349 P.2d 556, 560 (Idaho 1960) (“Nominal damage 

need not be proved, but naturally flows from a wrongful 

entry.”).

I dissent because I would hold that the “ability to hold 

property or to exercise control of it” requires recognition by 

courts of the owner’s right to exclusive possession of the 

land—the right to exclude anyone from entry, at any time, 

and for any reason at all or indeed for no reason.2 The 

majority brushes aside this longstanding principle of 

property in concluding that entry by misrepresentation “does 

not infringe upon the specific interests trespass seeks to 

protect.” The majority’s result contradicts the “universally 

held” principle that the “right to exclude” is “a fundamental 

element of the property right.” Kaiser Aetna v. United 

States, 444 U.S. 164, 179–80 (1979). Whilst the majority 

opinion relies on out-of-circuit cases which seemingly limit 

a landowner’s rights,3 but which are distinguishable, I 

choose to rely on the law of Idaho and the common-law right 

of property, ages old.

“There is nothing which so generally strikes the 

imagination, and engages the affections of mankind, as the 

right of property; or that sole and despotic dominion which 

one man claims and exercises over the external things of the 

world, in total exclusion of the right of any other individual 

in the universe.” 2 William Blackstone, COMMENTARIES ON 

THE LAWS OF ENGLAND *2. For centuries, Anglo-American 

 2 In a society governed by the Rule of Law, exceptions to the right 

of the owner to exclusive possession of his land can be made by due 

process of law, such as court orders and official acts.

3 The majority cites Desnick v. Am. Broad. Cos., Inc., 44 F.3d 1345 

(7th Cir. 1995), and Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 

505, 517 (4th Cir. 1999)).
42 ANIMAL LEGAL DEFENSE FUND V. WASDEN

law has affirmed this central feature of property—the right 

to exclude others—in the “general rule” that “our law holds 

the property of every man so sacred, that no man can set his 

foot upon his neighbour’s close without his leave.” Florida 

v. Jardines, 569 U.S. 1, 8 (2013) (alteration and internal 

quotation omitted) (quoting Entick v. Carrington, 2 Wils. 

K.B. 275, 95 Eng. Rep. 807 (K.B. 1765), “a case 

‘undoubtedly familiar’ to ‘every American statesman’ at the 

time of the Founding”). The Supreme Court of the United 

States has repeatedly held that “as to property reserved by its 

owner for private use, ‘the right to exclude others is “one of 

the most essential sticks in the bundle of rights that are 

commonly characterized as property.”’” See, e.g., Nollan v. 

California Coastal Comm’n, 483 U.S. 825, 831 (1987) 

(quoting Loretto v. Teleprompter Manhattan CATV Corp., 

458 U.S. 419, 435 (1982) (alteration omitted)). I therefore 

dissent from the majority opinion as to subsection (a) of the 

Idaho statute at issue. I otherwise concur in the majority 

opinion.

The majority analyzes this case under United States v. 

Alvarez, in which the Supreme Court invalidated under the 

First Amendment the Stolen Valor Act, 18 U.S.C. § 704, a 

federal statute which made criminal false claims that the 

speaker had received the Congressional Medal of Honor. 

567 U.S. 709 (2012). At the outset, it is important to note 

that subsection (a) of the Idaho statute at issue in this case 

differs from the version of the Stolen Valor Act at issue in 

Alvarez in at least one crucial aspect: Whereas the Stolen 

Valor Act prohibited the act of lying about a particular 

subject (receipt of military decorations or medals), 18 

U.S.C. § 704, subsection (a) of Idaho’s statute prohibits the 

act of entering a particular type of property (“agricultural 

production facilities”) by particular means (including 
ANIMAL LEGAL DEFENSE FUND V. WASDEN 43

“misrepresentation”), Idaho Code § 18-7042(1)(a).4 By the 

plain meaning of the statute, liability attaches only to those 

who “enter[]” an agricultural production facility through 

lying, not to any and all who tell lies to agricultural facility 

owners or to the public about such owners. Id. In other 

words, subsection (a) of the Idaho statute does not prohibit 

“pure speech.” Although under Alvarez a lie—without 

“more”—is pure speech,5 the Idaho statute is directed at 

something “more”: the conduct of knowingly entering an 

agricultural facility through the use of a lie. The use of the 

term “enters” is a clear invocation of the standards and 

interests of the law of trespass.6 This provision no more 

 4 Idaho Code § 18-7042 provides that a person commits the 

misdemeanor crime of “interference with agricultural production” if the 

person “knowingly” “(a) [i]s not employed by an agricultural production 

facility and enters an agricultural production facility by force, threat, 

misrepresentation, or trespass” (emphasis added).

5 In Alvarez, the Supreme Court explicitly distinguished cases of 

“defamation, fraud, or some other legally cognizable harm associated 

with a false statement” from cases that confront “a measure, like the 

Stolen Valor Act, that targets falsity and nothing more.” 567 U.S. at 719 

(emphasis added).

6 “One who intentionally enters land in the possession of another is 

subject to liability to the possessor for a trespass, although his presence 

on the land causes no harm to the land, its possessor, or to any thing or 

person in whose security the possessor has a legally protected interest.” 

Restatement (Second) of Torts § 163 (1965) (emphasis added). The term 

“enters land” is defined “to include, not only coming upon land, but also 

remaining on it, and, in addition, to include the presence upon the land 

of a third person or thing which the actor has caused to be or to remain 

there.” Id. § 158.
44 ANIMAL LEGAL DEFENSE FUND V. WASDEN

regulates pure speech than do prohibitions on larceny by 

trick or false pretenses.7

Therefore, I don’t see how Alvarez is applicable, or that 

a First Amendment analysis is at all necessary to subsection 

(a) of the subject Idaho statute. See Pickup v. Brown, 740 

F.3d 1208, 1230 (9th Cir. 2014)8 (“[A]n act that ‘symbolizes 

nothing,’ even if employing language, is not ‘an act of 

communication’ that transforms conduct into First 

Amendment speech.” (quoting Nevada Comm’n on Ethics v. 

Carrigan, 564 U.S. 117, 126–27 (2011))).9 Here, as in 

 7 For example, in Idaho “[t]heft includes a wrongful taking, 

obtaining or withholding of another’s property . . . committed . . . [b]y 

deception . . . [or] [b]y conduct heretofore defined or known as . . .

common law larceny by trick . . . . [or] obtaining property, money or 

labor under false pretenses.” Idaho Code § 18-2403; see also 18 U.S.C. 

§ 1708 (“Whoever . . . by fraud or deception obtains . . . from or out of 

any mail, post office, or station thereof, letter box, mail receptacle . . . or 

other authorized depository . . . any article or thing contained therein . . . 

[s]hall be fined under this title or imprisoned not more than five years, 

or both.”).

8 In Pickup, the plaintiffs brought a First Amendment challenge to 

California Senate Bill 1172 (“SB 1172”), which banned state-licensed 

mental health providers from engaging in “sexual orientation change 

efforts” with patients under 18 years of age. 740 F.3d at 1221. The 

district court granted a preliminary injunction enjoining enforcement of 

the law and California appealed. Id. at 1222. This court engaged in 

plenary review, id., upheld SB 1172, id. at 1236, and reversed the grant 

of the preliminary injunction, id. The panel found that SB 1172 regulated 

professional conduct, rather than speech, by banning a certain form of 

treatment, and so was “subject to deferential review just as are other 

regulations of the practice of medicine.” Id. at 1229–31.

9 In Carrigan, the petitioner, the Nevada Commission on Ethics, 

investigated respondent Carrigan under Nevada’s “Ethics in 

Government” law, which required public officials to recuse themselves 
ANIMAL LEGAL DEFENSE FUND V. WASDEN 45

Pickup and Carrigan, a common law trespass “symbolizes 

nothing.” It seems plain to me that Idaho’s political 

branches could enact a general criminal trespass law that 

includes in its definition of “trespass” entry obtained by 

fraud or misrepresentation. Cf. Rowe v. City of Pocatello, 

218 P.2d 695, 701 (Idaho 1950) (“[T]he city could ban the 

practice of uninvited intrusion upon private residences . . . 

The city could . . . merely declare it a misdemeanor.”); Idaho 

Code § 18-2403 (prohibiting theft by deception, trick, or

false pretenses). If that is so, I see nothing to prevent Idaho 

legislators from extending such protection only to certain 

types of properties, such as nuclear facilities, see 10 C.F.R. 

§ 160.3 (prohibiting trespass on “facilities, installations, and 

real property subject to the jurisdiction . . . of the Nuclear 

Regulatory Commission.”). The relative importance of 

nuclear facilities and “agricultural production facilities” is in 

the eyes of the beholder, or, in this case, the Idaho state 

legislature.

Even assuming that Alvarez is applicable here, 

subsection (a) survives First Amendment review under 

Alvarez. As the majority recognizes, false speech may be 

criminalized if made “for the purpose of material gain” or 

 from voting on or advocating a vote on matters in which a reasonable 

person would be materially affected by their private interests. 564 U.S. 

at 119–20. The Commission concluded that Carrigan violated the law 

by voting to approve a hotel/casino project in which his campaign 

manager was involved. Id. at 120. The Nevada Supreme Court found 

the ethics law overbroad, and the U.S. Supreme Court granted certiorari. 

Id. at 121. The Court held that a legislator’s vote is “nonsymbolic 

conduct” and reversed. Id. at 127, 129. “[T]he act of voting symbolizes 

nothing. It discloses, to be sure, that the legislator wishes (for whatever 

reason) that the proposition on the floor be adopted, just as a physical 

assault discloses that the attacker dislikes the victim. But neither . . . is 

an act of communication.” Id. at 126–27.
46 ANIMAL LEGAL DEFENSE FUND V. WASDEN

“material advantage,” or if it inflicts a “legally cognizable 

harm.” Alvarez, 567 U.S. at 719, 723 (plurality opinion). 

Similarly, in his concurrence with Justice Kennedy’s 

plurality opinion in Alvarez, Justice Breyer distinguished the 

Stolen Valor Act from presumptively constitutional statutes,

such as those prohibiting fraud, impersonation, trademark 

infringement etc., which prohibit “a subset of lies where 

specific harm is more likely to occur.” Id. at 734–36 (Breyer, 

J., concurring) (emphasis added). To the extent that 

subsection (a) prohibits misrepresentations as well as 

entries, I have no difficulty concluding that “enter[ing]” the 

property of another “by . . . misrepresentation” inflicts a 

“legally cognizable harm,” Alvarez, 567 at 719, is done for 

the purpose of material gain, id. at 723, and involves “a 

subset of lies” where the “specific harm” of trespass “is more 

likely to occur,” id. at 736 (Breyer, J., concurring).

The state of Idaho has long recognized that a violation of 

a property owner’s exclusive dominion over his land is a 

legally cognizable harm. See Marshall v. Niagara Springs 

Orchard Co, 125 P. 208, 212 (Idaho 1912) (“[I]t is the 

appellant’s right by reason of his ownership of the land to 

have exclusive possession of said land.” (emphasis added)); 

see also Walter E. Wilhite Revocable Living Tr. v. Nw. 

Yearly Meeting Pension Fund, 916 P.2d 1264, 1274 (Idaho 

1996) (“Trespass is a tort against possession committed 

when one, without permission, interferes with another’s 

exclusive right to possession of the property.” (emphasis 

added)); Idaho Code § 22-2402 (defining “landowner” to 

mean “[a] person with an interest in a parcel of land such that 

the person has the right to exclude others from possession of 

the parcel”).

The majority’s proposal to count as a “legally cognizable 

harm” only those trespasses that violate Idaho’s criminal 
ANIMAL LEGAL DEFENSE FUND V. WASDEN 47

code is thus foreclosed by the contrary substantive law of 

Idaho and other common law jurisdictions. “One who 

intentionally enters land in the possession of another is 

subject to liability to the possessor for a trespass, although 

his presence on the land causes no harm to the land, its 

possessor, or to any thing or person in whose security the 

possessor has a legally protected interest.” Restatement 

(Second) of Torts § 163 (1965). To vindicate his right of 

exclusive dominion, a landowner may recover nominal 

damages for trespass—even absent evidence of any physical 

or pecuniary injury—because “[n]ominal damage need not 

be proved, but naturally flows from a wrongful entry.” 

Taysom v. Taysom, 349 P.2d 556, 560 (Idaho 1960); see also 

Nelson v. Holdaway Land & Cattle Co., 691 P.2d 796, 799 

(Idaho Ct. App. 1984) (owner was entitled to recover 

nominal damages for trespass “even though no actual 

damages were proven”). Furthermore, a landowner has a 

general right to exclude others from his lands by reasonable 

force, under certain circumstances. Restatement (Second) of 

Torts § 77 (1965). Generally speaking, a landowner can use 

such reasonable force to defend “his exclusive possession of 

land” from others for any reason at all, even “personal 

dislike or hostility to the other.” See id. cmt. c; Rowe v. City 

of Pocatello, 218 P.2d 695, 700 (Idaho 1950) (“A man’s 

house is still his castle. He may exclude whom he chooses.”).

In fact, no less an authority than the Supreme Court of 

Idaho has found an actionable trespass where the defendant 

used a misrepresentation to gain access to the plaintiff’s 

property and the defendant merely crossed the property. In 

Green v. Beaver State Contractors, Inc., the contractor went 

to plaintiff Lula M. Green and sought permission to enter 

and remove “lava rock” from her land. 472 P.2d 307, 307 

(Idaho 1970). The contractor offered to pay $1 plus 5 cents 

“per yard of rock removed” from Green’s land, and she 
48 ANIMAL LEGAL DEFENSE FUND V. WASDEN

agreed. Id. at 307–08. In reality, however, the contractor 

removed rock only from land adjoining Green’s land and 

was merely using Green’s land as a means of access to obtain 

the rock from the third party, thus avoiding any obligation to 

pay Green for “rock removed.” Id. at 308. “In view of the 

circumstances,” namely the “misrepresentation . . . by [the 

contractor],” the Idaho Supreme Court found a common-law 

trespass and remanded the case for a determination of 

Green’s damages. Id. at 310. Therefore, the Supreme Court 

of Idaho has recognized that employing misrepresentation to 

gain entry inflicts a legally cognizable harm, even if the 

invader entered “merely . . . to cross the threshold of 

another’s property.”

In the case of Jacque v. Steenberg Homes, Inc., 

563 N.W.2d 154 (Wisc. 1997), the Supreme Court of 

Wisconsin affirmed the value of the right to exclude even 

more emphatically. It affirmed an eye-popping award of 

punitive damages for the precise sort of “mere” thresholdcrossing that the majority pooh-poohs here. In that case, the 

defendant, Steenberg Homes, had sold a mobile home to a 

neighbor of the Jacques, who were retired farmers. It 

determined that “the easiest route” to deliver the mobile 

home would be to cut across the Jacques’ land. Id. at 157. 

The “only alternative” was to haul the mobile home through 

a sharply-curved private road which was covered in seven 

feet of snow at the time. Id. Understandably, Steenberg saw 

a material advantage in “merely . . . cross[ing] the threshold”

of the Jacques’ property. The Jacques refused permission to 

haul the mobile home across their land, but Steenberg did so 

anyway. Id. at 157–58. The jury awarded nominal damages 

of $1 and punitive damages of $100,000, id. at 158, and the 

Supreme Court of Wisconsin, upheld the award in full. Id. 

at 166. Not only did the jury properly award nominal 

damages because “[t]he law infers some damage from every 
ANIMAL LEGAL DEFENSE FUND V. WASDEN 49

direct entry upon the land of another,” id. at 160 (quoting 

Prosser and Keeton on Torts, § 13 (5th ed. 1984)), the jury 

also properly awarded punitive damages to vindicate the 

strong interest of individual landowners and of society in 

protecting private property from trespass, id.

The Idaho trespass statute cited in the majority opinion 

is not relevant. The majority cites Idaho Code § 18-7008(9) 

for the proposition that only lands posted with “No 

Trespassing” signs can be trespassed upon under Idaho law. 

But while the cited statute so limits actions seeking criminal

penalties for “willful and intentional[]” trespass, it does not 

otherwise override or eliminate common law trespass in 

Idaho.10 Nor does Idaho Code § 6-202, which provides for 

treble damages in civil actions for “willful and intentional[]” 

trespass and also requires posted “No Trespassing” signs:

[T]he Idaho statutes governing trespass only 

apply when the trespass is shown to have 

been wilful and intentional, and the wronged 

party seeks treble damages therefor, as 

authorized by Section 6-202. In all other 

circumstances, the common law principles 

relating to trespass actions apply. The court is 

unaware of any recent Idaho cases to the 

contrary, and the 1976 amendments to the 

 10 “The common law of England, so far as it is not repugnant to, or 

inconsistent with, the constitution or laws of the United States, in all 

cases not provided for in these compiled laws, is the rule of decision in 

all courts of this state.” Idaho Code § 73-116. “[C]hanges in the 

common law by the adoption of a statute may not be presumed, nor may 

such changes be accomplished by legislation of doubtful implication. 

Indus. Indem. Co. v. Columbia Basin Steel & Iron Inc., 93 Idaho 719, 

723 (Idaho 1970).
50 ANIMAL LEGAL DEFENSE FUND V. WASDEN

statutes did nothing to alter this interpretation 

. . . .

Mock v. Potlatch Corp., 786 F. Supp. 1545, 1548 (D. Idaho 

1992) (citing Menasha Woodenware Co. v. Spokane Int’l. 

Ry., 115 P. 22 (Idaho 1911)).11 Thus, the “imaginations” and 

“affections” of Idahoans are not so different from those of 

greater mankind. See Blackstone, supra. Unauthorized 

entry upon the land of another is common-law trespass in 

Idaho and thus a legally cognizable harm.12

The majority also argues, based on two out-of-circuit 

cases, that not all misrepresentations necessarily vitiate 

consent to entry. The majority cites Desnick v. Am. Broad. 

Cos., Inc., 44 F.3d 1345 (7th Cir. 1995), and Food Lion, Inc. 

v. Capital Cities/ABC, Inc., 194 F.3d 505, 517 (4th Cir. 

1999). Both Desnick and Food Lion note, in discussing the 

common law of various other jurisdictions, that there is no 

 11 In Menasha, the plaintiff alleged that the defendant went on its 

lands and cut and removed timber. 115 P. at 23. The trial court awarded 

treble damages and the defendant appealed. Id. at 24. The Supreme 

Court of Idaho reversed the award of statutory treble damages. Id. at 24–

25. The court read a willfulness requirement into the statute and reversed 

the award because there was no allegation that the trespass was willful. 

Id. at 24–25. In so doing, however, the court noted that the complaint 

was “good as an action at common law, entitling the plaintiff to his actual 

damage,” but simply did not meet the statutory requirements for trebled 

damages. Id. at 25. Rather, the court concluded that “the damages 

recoverable at common law would afford an adequate reparation.” Id. 

The court therefore reduced the judgment to provide only actual damages 

and affirmed the judgment, so modified. Id.

12 Nowhere does Alvarez hold that a “legally cognizable harm” must 

also be a crime. In fact, Alvarez points to classic common law injuries—

“defamation,” “fraud,” and “invasion of privacy”—as examples of 

“legally cognizable harms.” 567 U.S. at 719.
ANIMAL LEGAL DEFENSE FUND V. WASDEN 51

consensus on this issue. Food Lion, Inc., 194 F.3d at 517 

(“[T]he various jurisdictions and authorities in this country 

are not of one mind in dealing with the issue.”); Desnick, 44 

F.3d at 1352–53 (noting diversity of results in entry-bymisrepresentation cases and proposing a new rule—of 

undisclosed origin—to reconcile them); see also 

Restatement (Second) of Torts § 173 cmt. b (1965) 

(providing that “[a] conscious misrepresentation as to the 

purpose for which admittance to the land is sought, may be 

a fraudulent misrepresentation of a material fact” which 

vitiates consent pursuant to Restatement (Second) of Torts 

§ 892B). As relevant here, however, the law of Idaho is 

contrary to the Desnick and Food Lion decisions. See 

Beaver State Contractors, Inc., 472 P.2d at 310 (finding 

trespass where defendant entered and crossed the owner’s 

property by misrepresentation). Even if entries such as those 

at issue in Desnick or Food Lion (or Beaver State) neither 

damage the premises nor “disrupt” the owner’s activities 

thereon, wrongful entry is nonetheless a “legally cognizable 

harm” per se. Taysom, 349 P.2d at 560 (“Nominal damage 

. . . naturally flows from a wrongful entry.”).

Furthermore, there is no suggestion in either Desnick or 

Food Lion that the First Amendment prohibits a state court 

or state legislature from establishing a different rule 

eliminating consent to enter land when the consent is 

procured by fraud. Cf. Illinois, ex rel. Madigan v. 

Telemarketing Assocs., Inc., 538 U.S. 600, 624 (2003) 

(“Consistent with our precedent and the First Amendment, 

States may maintain fraud actions when fundraisers make 

false or misleading representations designed to deceive 

donors about how their donations will be used.”); State v. 

Jesser, 501 P.2d 727, 737 n.29 (Idaho 1972) (“It has long 

been settled that fraud vitiates the consent of the victim to 

the taking of his property by agreement, and that, 
52 ANIMAL LEGAL DEFENSE FUND V. WASDEN

consequently, the taking is a constructive trespass upon 

possession . . . .”); Idaho Code § 18-2403 (prohibiting theft 

by deception, trick, or false pretenses). If the problem with 

subsection (a) is that it enacts something different from the 

substantive law of trespass advocated by a Seventh Circuit 

or Fourth Circuit panel, any suggestion that those panels 

have hit upon a “better rule” should be directed to the Idaho 

legislature. It is Idaho law that governs what constitutes 

valid consent for a license sufficient to avoid a trespass on 

Idaho land.

Subsection (a) is also limited to lies which are likely to 

cause a “specific harm,” as Justice Breyer’s Alvarez 

concurrence would require. Justice Breyer distinguished the 

Stolen Valor Act, which prohibited “falsity and nothing 

more,” from various other statutes which prohibit certain 

false or deceptive communications which cause or are likely 

to cause a “specific harm.” Alvarez, 567 U.S. at 734–36 

(Breyer, J., concurring). For example, (1) fraud statutes 

require “actual injury,” (2) defamation statutes require a 

reputational harm, (3) intentional infliction of emotional 

distress liability requires an “emotional, dignitary, or 

privacy-related” harm, (4) statutes dealing with perjury or 

lying to government officials are “typically limited to 

circumstances where a lie is likely to . . . interfer[e] with the 

functioning of a government department,” (5) impersonation 

statutes focus “may require” a showing that someone was 

deceived into following a course of action he would not have 

pursued but for the deceitful conduct, and (6) trademark 

infringement statutes are focused on infringement which 

causes confusion among consumers about the source of a 

product, and thereby dilutes the value of a trademark. 

Alvarez, 567 U.S. at 734–36 (Breyer, J., concurring). The 

“specific harm” requirement thus mandates that a 

prohibition on lies be limited to or “focused on” lies which 
ANIMAL LEGAL DEFENSE FUND V. WASDEN 53

are “more likely” to cause a discrete and identifiable type of 

harm. That is, a generalized prohibition on telling lies about 

consumer products is overbroad, while a prohibition on lies 

which are likely to trick consumers into buying a product 

they would not otherwise buy is not. Unlike the Stolen Valor 

Act, subsection (a) is limited to lies which are likely to cause 

a specific harm: invasion of and onto land, or the harm to 

property owners’ right to exclude others. In fact, in this 

analysis, subsection (a) is even better than Justice Breyer’s 

trademark infringement and impersonation examples 

because the specific harm must occur for liability to attach, 

rather than just be “more likely” to occur.

Conversely, when one obtains permission to enter onto 

the land of another, he obtains a material gain: a license to 

enter. The resulting license is a legally cognizable interest 

or privilege. See Restatement (First) of Property § 512 

(1944) (“[T]he word ‘license’ indicates the legal interest

arising from a consent.”). It confers the ability to do lawfully 

that which the law otherwise forbids and punishes as 

trespass. Shultz v. Atkins, 554 P.2d 948, 953 (Idaho 1976) 

(“[A]n essential element of a license . . . [is] the right to use 

land in the possession of another.”). Take the example, 

suggested by the Majority’s opinion, of the teenager who lies 

to get a reservation at an exclusive restaurant. The majority 

admits that the teenager gains something (entry to the 

restaurant) but concludes, without explanation,13 that “[t]his 

entry alone does not constitute a material gain.” No material 

 13 Because the majority does not explain how it reaches this 

conclusion, I assume it is my colleagues’ own appraisal of the 

restaurant’s menu.
54 ANIMAL LEGAL DEFENSE FUND V. WASDEN

gain to the teenager? However one defines “material”14 and 

“gain,”15 it seems a stretch to say the teenager stands to 

obtain neither at the restaurant. The majority must imagine 

the lad served thin gruel indeed for him to have received 

nothing of “substance,” leaving him with a sense of not 

“getting something” as a result of hoodwinking the maître 

d’hôtel.

Furthermore, if the teenager takes a seat in the restaurant 

with permission procured by fraud, he commits trespass and 

is liable for at least nominal damages. But if he obtains 

consent, he is able to gain lawful (albeit limited) use of 

another’s land—a discrete, legally cognizable advantage16

that he did not have before consent was given. If nothing 

else, he gains a suspension of the owner’s right to expel him 

from the restaurant by force. See Restatement (Second) of 

Torts § 77 (1965).

The majority’s restaurant analogy merely evades the 

crucial inquiries under Alvarez. First, “entry alone” is a 

 14 Material: “1. of matter; of substance . . . physical: a material object 

. . . 2. a. of the body or bodily needs, satisfactions . . . corporeal . . . .” 

MATERIAL, Webster’s New World College Dictionary (5th ed. 2014).

15 Gain: “1. An increase; addition . . . 2. the act of getting something 

. . . .” GAIN, Webster’s New World College Dictionary (5th ed. 2014).

16 Furthermore, as an empirical matter, it is not self-evidently true 

that interfering only with the right to exclude does not appropriate 

anything of material value. See Jonathan Klick & Gideon 

Parchomovsky, The Value of the Right to Exclude: An Empirical 

Assessment, 165 U. Pa. L. Rev. 917 (2017) (finding, based on an 

empirical analysis of the effect of legislation that recognized a “right to 

roam” in England and Wales on property values, that “even so-called 

slight intrusions on owners’ exclusion right in favor of more public 

access . . . come at a real cost to owners”).
ANIMAL LEGAL DEFENSE FUND V. WASDEN 55

legally cognizable harm under Idaho law; that is why under 

Idaho law aggrieved landowners, subjected to a trespass, 

need not prove unjust enrichment or any other form of 

damages. Taysom, 349 P.2d at 560. Legally cognizable

harm—not some unknown quantum of physical damage or 

economic harm to be determined by courts ex post, on a caseby-case basis—is what Alvarez requires. Alvarez, 567 U.S. 

at 719 (plurality opinion). Second, although “entry alone” 

may seem insignificant to the majority, it was apparently 

significant to the Beaver State contractor who took the 

shortcut across Ms. Green’s land. See supra at 47–48. And 

in the majority’s hypothetical, it is apparently significant to 

restauranteurs who offer their in-demand tables to “wellknown journalists” but not to journalists’ teenage sons. 

Indeed, the teenager does cause economic harm in the 

majority’s hypothetical: When he secures one of a limited 

number of reservations, he takes a valuable table off of the 

market and puts it to a perhaps economically sub-optimal use 

(his own). That is, unless his journalist mother has been 

splendid as to an allowance. Third, the majority’s 

hypothetical does not present a case of entry “by 

misrepresentation.” The maître d’hôtel must recognize that 

the teenager is not his famous journalist mother when the 

teenager arrives at the restaurant; if he seats the teenager 

anyway, then the restaurant consents to the entry and the 

teenager does not violate the Idaho statute. Finally, the 

majority concludes that the teenager’s lie is “pure speech.” 

“Nothing but speech,” yes; but a lie is seldom “pure.” 

Nonetheless, the Idaho statute criminalizes entries, not lies. 

See supra, at 43.

The majority seems to be concerned—understandably—

that the Idaho law’s punishments for such trespasses are 

Draconian or unwise (“the teenager would be subject to 

punishment of up to one year in prison, a fine not to exceed 
56 ANIMAL LEGAL DEFENSE FUND V. WASDEN

$5,000, or both.”). But that concern has nothing to do with 

whether entry-by-misrepresentation inflicts a legally 

cognizable harm or provides a material gain—which is to 

say that it has nothing to do with the Alvarez analysis. That 

the Idaho statute may take a heavy-handed approach to 

punishing certain trespasses is a policy argument against the 

Idaho statute, and that argument should be addressed to 

Idaho’s legislators and voters.

The misconception of the ancient right at stake—the 

right of an owner of real property to exclude all others from 

his property—is where the majority goes wrong, as our 

holding as to subsection (b) demonstrates. Applying Alvarez

to subsection (b), the majority finds that “[o]btaining an 

agricultural production facility’s records by 

misrepresentation inflicts a ‘legally cognizable harm’ by 

impairing an agricultural production facility owner’s ability 

to control who can assert dominion over, and take possession 

of, his property.” Quite right. The farmer’s records are his 

property. So is his land his property. Subsection (a) is 

constitutional for precisely the same reason: Entering an 

agricultural production facility by misrepresentation inflicts 

a “legally cognizable harm” by “impairing an agricultural 

production facility owner’s ability to control who can assert 

dominion over . . . his [real] property.” There is no 

meaningful legal distinction between the two subsections 

under Alvarez, and neither is unconstitutional.

I respectfully dissent.