## Facts

- Utah enacted Utah Code Ann. § 76-6-112, criminalizing (1) misrepresentations used to gain access or employment at an agricultural operation and (2) audio/video recording at such an operation after gaining access through misrepresentation.
- Animal-advocacy organizations and an individual plaintiff alleged they had conducted undercover investigations in the past using misrepresentations and covert recording to document animal mistreatment and intended to continue similar work in Utah.
- Plaintiffs alleged the statute chilled planned investigative activity because violations carried criminal penalties.
- One plaintiff had previously been charged under the statute for recording a slaughterhouse from a public road; the charge was dismissed, but plaintiffs cited it as evidence of a credible enforcement threat.
- State officials asserted interests including protection of property rights, biosecurity, fraud prevention, and employee and animal safety.
- Plaintiffs brought a § 1983 action seeking declaratory and injunctive relief, and the parties filed cross-motions for summary judgment.

## Issues

1. Whether plaintiffs had Article III standing to bring a pre-enforcement First Amendment challenge.
2. Whether the statute’s criminalization of certain lies used to gain access or employment regulates speech protected by the First Amendment.
3. Whether the statute’s restriction on audio/video recording regulates protected speech or expressive conduct.
4. Whether the statute is content- and viewpoint-based, triggering strict scrutiny.
5. Whether the statute survives the applicable First Amendment scrutiny.

## Decision

- The court held plaintiffs had standing based on concrete plans to engage in the covered conduct and a credible threat of prosecution, reinforced by prior enforcement activity.
- The court granted plaintiffs’ motion for summary judgment and denied defendants’ motion.
- The court held that at least some misrepresentations criminalized by the statute remained protected speech because they were not, by themselves, tied to legally cognizable harm or material gain.
- The court held the recording provision regulated the creation of speech and therefore implicated the First Amendment.
- The court held the statute was content- and viewpoint-based and failed strict scrutiny because it was not narrowly tailored and less restrictive alternatives were available.
- The statute was declared unconstitutional and unenforceable under the First Amendment.

## Legal Principles

- Pre-enforcement First Amendment challenges may proceed where intended conduct is arguably proscribed and there is a credible threat of prosecution; chilling of planned speech can establish injury.
- False statements are not categorically outside the First Amendment; restrictions on lies generally require a showing that the falsehood is linked to legally cognizable harm or material gain.
- The act of recording audio or images is part of the speech process and can receive First Amendment protection, including when used to gather information for later dissemination.
- Content-based and viewpoint-based speech restrictions are subject to strict scrutiny and must be narrowly tailored to serve a compelling governmental interest.
- A statute may fail strict scrutiny where it is overinclusive (sweeping in protected activity without harm), underinclusive (selectively targeting disfavored speech), and where existing laws provide less speech-restrictive means to address the government’s asserted interests.

## Conclusion

The court invalidated Utah’s agricultural-interference statute because it targeted protected investigative misrepresentation and recording through content- and viewpoint-based criminal prohibitions that were not narrowly tailored to the State’s asserted interests.


Animal Legal Def. Fund v. Herbert, 263 F. Supp. 3d 1193 (D. Utah 2017)