Animal Legal Defense Fund v. Kimberly Reynolds

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 22-3464
___________________________
Animal Legal Defense Fund;
People for the Ethical Treatment of Animals, Inc.; Bailing Out Benji;
Food & Water Watch; Iowa Citizens for Community Improvement
Plaintiffs - Appellees
v.
Kimberly Reynolds, in her official capacity as Governor of Iowa;
Brenna Bird, in her official capacity as Attorney General of Iowa;
Vanessa Strazdas, in her official capacity as Cass County Attorney;
Jeannine Ritchie, in her official capacity as Dallas County Attorney;
Nathan Repp, in his official capacity as Washington County Attorney
Defendants - Appellants
------------------------------
Iowa Pork Producers Association
Amicus on Behalf of Appellants
Reporters Committee for Freedom of the Press; 17 Media Organizations; Deans,
Law Professors, and Journalism Professors; United Farm Workers of America
Amici on Behalf of Appellees
____________
Appeal from United States District Court
for the Southern District of Iowa
____________

-- 1 of 15 --

-2-
Submitted: September 20, 2023
Filed: January 8, 2024
____________
Before COLLOTON, GRASZ, and KOBES, Circuit Judges.
____________
GRASZ, Circuit Judge.
Iowa enacted a trespass-surveillance law penalizing anyone who, while
trespassing, “knowingly places or uses a camera or electronic surveillance device
that transmits or records images or data while the device is on the trespassed
property[.]” Iowa Code § 727.8A (“the Act”). Five animal-welfare groups
(collectively, “Plaintiffs”) sued Iowa state officials, arguing that the Act
unconstitutionally punishes activity protected by the First Amendment. The Iowa
officials (collectively, “the State”) moved to dismiss for lack of subject matter
jurisdiction and for failure to state a claim under Federal Rule of Civil Procedure
12(b)(1) and (6). The district court held that Plaintiffs had standing and the case was
ripe, and concluded the Act was unconstitutional on its face because it was not
narrowly tailored to achieve the State’s substantial interests. The State appeals the
district court’s denial of the motion to dismiss, its grant of summary judgment to
Plaintiffs, and its order permanently enjoining and prohibiting the enforcement of
the Act. For the reasons discussed below, we affirm in part the district court’s denial
of the State’s motion to dismiss, and we reverse the district court’s grant of summary
judgment to Plaintiffs.
I. Background
In 2021, Iowa enacted Iowa Code § 727.8A, which created the new crime of
trespass-surveillance. The Act states:
A person committing a trespass as defined in section 716.7 who
knowingly places or uses a camera or electronic surveillance device that
transmits or records images or data while the device is on the trespassed

-- 2 of 15 --

-3-
property commits an aggravated misdemeanor for a first offense and a
class “D” felony for a second or subsequent offense.
The Act applies only when there has first been a “trespass” as defined in Iowa Code
§ 716.7(2). When a general trespass does not involve injury to a person or property
damage over $300, Iowa punishes the offense as a “simple misdemeanor,” see id.
§ 716.8(1), (2), with a fine between $105 and $855 and up to thirty days of
imprisonment. See id. § 903.1(1)(a). The Act, however, punishes a first offense of
trespass-surveillance as an “aggravated misdemeanor,” with a fine between $855
and $8,540 and up to two years of imprisonment. See id. § 903.1(2). The State
argues these steeper penalties are, in part, meant to deter would-be trespassers from
placing or using recording devices, in addition to protecting the privacy interests of
Iowans on their private property. Plaintiffs argue these steeper penalties chill their
protected activity.
“Plaintiffs are five non-profit organizations dedicated to animal welfare,
environmental protection, and other grassroots advocacy issues.” Animal Legal Def.
Fund v. Reynolds, 630 F. Supp. 3d 1105, 1109 (S.D. Iowa 2022). They are the
Animal Legal Defense Fund (ALDF); People for the Ethical Treatment of Animals,
Inc. (PETA); Bailing Out Benji (BOB); Food & Water Watch (FWW); and Iowa
Citizens for Community Improvement (ICCI). ALDF and PETA send undercover
operatives to targeted agricultural facilities. These self-styled investigators get jobs
at the facilities and then use cameras to record activities,1 looking for any violations
of animal-cruelty statutes or other laws and regulations. ALDF and PETA send
those video recordings to law enforcement and media outlets. BOB sends
undercover operatives to secretly record suspected animal cruelty toward dogs inside
breeding facilities and pet stores. BOB also sends its recordings to law enforcement
and media outlets. ALDF, PETA, and BOB claim their operatives do not commit
general trespass. FWW does not itself conduct any investigations, protests,
1 We use “camera” as a catch-all term for any device the Act covers, which
includes any “camera or electronic surveillance device that transmits or records
images or data[.]” Iowa Code § 727.8A.

-- 3 of 15 --

-4-
recording activities, or trespasses. Instead, FWW uses recordings obtained by the
other plaintiffs for its own advocacy efforts. FWW claims it loses out on recordings
from the other groups, which FWW says suppresses its own speech. ALDF, PETA,
and BOB also claim to have standing as would-be recipients of speech.
Unlike the other plaintiffs, ICCI pleads its members intentionally commit
general trespass, and they record themselves while doing so. ICCI engages in what
it calls, “non-violent civil disobedience, particularly trespassing at political and
corporate sites[.]” ICCI members record their protests to share with the public to
draw attention to their activities and to record wrongdoing, particularly by law
enforcement officers who arrest ICCI members.
The State moved to dismiss Plaintiffs’ claims, and Plaintiffs moved for
summary judgment. The district court held for Plaintiffs on both motions. Applying
intermediate scrutiny to the Act, the district court held that the Act was facially
invalid because it was not narrowly tailored to achieve a substantial state interest.
The district court permanently enjoined enforcement of the Act. The State appeals
both the denial of its motion to dismiss and the grant of summary judgment to
Plaintiffs.
II. Analysis
A. Jurisdiction
Before addressing the merits, we must first analyze our jurisdiction. Unlike
the district court, we do not think the State conceded the jurisdictional issue. The
State argues that whatever injury Plaintiffs may suffer, it is not a legally cognizable
injury capable of conferring Article III standing. We must make our own
determination of whether we have jurisdiction over this case. “The existence of
subject-matter jurisdiction,” including whether a plaintiff has constitutional
standing, “is a question of law that this court reviews de novo.” ABF Freight Sys.,
Inc. v. Int’l Bhd. of Teamsters, 645 F.3d 954, 958 (8th Cir. 2011).

-- 4 of 15 --

-5-
The State argues Plaintiffs have not pled an injury to a legally cognizable
interest and, even if they had, the claims are neither redressable nor ripe because
Plaintiffs have not pled a present chill on their speech. Thus, the key question is
whether Plaintiffs pled facts showing they “have an objectively reasonable fear of
legal action that chills their [protected] speech.” Animal Legal Def. Fund v. Vaught,
8 F.4th 714, 720 (8th Cir. 2021) (“Vaught”). Answering that question requires us to
first examine what particular activity the Act criminalizes. The Act punishes the
trespasser who either “places or uses a camera or electronic surveillance device that
transmits or records images or data while the device is on the trespassed property[.]”
Iowa Code § 727.8A. An essential element of the Act is that it only applies to a
person who has committed “a trespass as defined in [Iowa Code] section 716.7[.]”
Id. By the Act’s plain language, “place” and “use” are not synonymous; these terms
relate to different types of activities. One can “use” a camera without ever “placing”
the camera on the trespassed property, such as by holding the camera or attaching it
to one’s body.
The State asks us to sever the Act’s two different provisions—“the Place
Provision” and “the Use Provision”—and to analyze Plaintiffs’ First Amendment
interests under both. Iowa law encourages us to sever any offending portions of a
statute from any non-offending portions, leaving the non-offending portions intact
if they can be given effect without the offending portions. See Iowa Code § 4.12.
See also Am. Dog Owners Ass’n, Inc. v. City of Des Moines, 469 N.W.2d 416, 418
(Iowa 1991) (“Severance is appropriate . . . if the remaining portion of the enactment
can be given effect without the invalid provision.”). “We should be sensitive to such
expressions of legislative preference for severance.” Advantage Media, L.L.C. v.
City of Eden Prairie, 456 F.3d 793, 800 (8th Cir. 2006). In this case, we decide to
sever the statute in the standing analysis because “severance of particular statutory
provisions to limit standing promotes important goals, notably the avoidance of
unnecessary constitutional adjudication and the sharpening of legal issues facing the
court.” Id. at 801.

-- 5 of 15 --

-6-
Because the Act’s provisions are severable, Plaintiffs “must show injury,
causation, and redressability with respect to each provision” they challenge. Id.
Accord Hershey v. Jasinski, 86 F.4th 1224, 1229 (8th Cir. 2023). When we address
Plaintiffs’ standing, we must not “conflate Article III’s requirement of injury in fact
with whether a plaintiff has stated a cause of action because the concepts are not
coextensive.” Pratt v. Helms, 73 F.4th 592, 594 (8th Cir. 2023). Accord Vaught,
8 F.4th at 721.
1. Standing Under the Use Provision
First, we look to Plaintiffs’ standing to challenge the Use Provision. “Our
authority under the Constitution is limited to resolving ‘Cases’ or ‘Controversies.’”
Dep’t of Educ. v. Brown, 600 U.S. 551, 561 (2023) (quoting U.S. Const. art. III, § 2,
cl. 1). “Two related doctrines of justiciability—each originating in the case-or-
controversy requirement of Article III—underlie this determination.” Trump v. New
York, 141 S. Ct. 530, 535 (2020). “First, a plaintiff must demonstrate standing,
including ‘an injury that is concrete, particularized, and imminent rather than
conjectural or hypothetical.’” Id. (quoting Carney v. Adams, 592 U.S. 53, 60
(2020)). “Second, the case must be ‘ripe’—not dependent on ‘contingent future
events that may not occur as anticipated, or indeed may not occur at all.’” Id.
(quoting Texas v. United States, 523 U.S. 296, 300 (1998)). Article III standing
requires “(1) an injury in fact, (2) a causal relationship between the injury and the
challenged conduct, and (3) that a favorable decision will likely redress the injury.”
Vaught, 8 F.4th at 718 (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61
(1992)). “[P]laintiffs bear ‘the burden of establishing these elements,’ and must
support each element ‘in the same way as any other matter’ on which they bear the
burden of proof.” Id. (quoting Lujan, 504 U.S. at 561).
The district court viewed the Rule 12(b)(1) motion as a facial attack on
jurisdiction based on the pleadings, giving Plaintiffs the same procedural safeguards
as a Rule 12(b)(6) motion. Animal Legal Def. Fund, 630 F. Supp. 3d at 1113–14.
“The method in which the district court resolves a Rule 12(b)(1) motion . . . obliges

-- 6 of 15 --

-7-
us to follow the same approach.” Carlsen v. GameStop, Inc., 833 F.3d 903, 908 (8th
Cir. 2016). On a motion to dismiss, “[P]laintiffs must allege sufficient facts to
support a reasonable inference that they can satisfy the elements of standing.”
Vaught, 8 F.4th at 718 (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) and Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007)). Plaintiffs satisfy the injury-
in-fact element if they allege “an intention to engage in a course of conduct arguably
affected with a constitutional interest, but proscribed by a statute, and there exists a
credible threat of prosecution thereunder.” Susan B. Anthony List v. Driehaus, 573
U.S. 149, 159 (2014) (quoting Babbitt v. United Farm Workers Nat’l Union, 442
U.S. 289, 298 (1979)).
When the alleged injury is a chill on constitutionally protected speech, the
First Amendment gives a more “lenient standing requirement” to pre-enforcement
challenges, such as this one. See Turtle Island Foods, SPC v. Thompson, 992 F.3d
694, 700 (8th Cir. 2021). “[W]hen a party brings a pre-enforcement challenge to a
statute that both provides for criminal penalties and abridges First Amendment
rights, ‘a credible threat of present or future prosecution itself works an injury that
is sufficient to confer standing.’” Minn. Citizens Concerned for Life v. FEC, 113
F.3d 129, 131 (8th Cir. 1997) (quoting N.H. Right to Life Pol. Action Comm. v.
Gardner, 99 F.3d 8, 13 (1st Cir. 1996)). In cases like this one—when a group of
plaintiffs share a consolidated complaint and hold “nearly identical” positions on an
issue—only one plaintiff needs to satisfy Article III’s case-or-controversy
requirement in its pleading. Elder v. Gillespie, 54 F.4th 1055, 1063 (8th Cir. 2022).
The district court and the parties focus on ICCI as the plaintiff with the strongest
factual basis to establish standing.
As pled, ICCI members travel to spaces generally open to the public or where
the public is typically allowed. Apparently, as ICCI members disruptively protest
in these spaces, they are inevitably asked to leave, and their refusal to leave makes
them trespassers. ICCI members have been arrested for trespassing in a number of
settings: blocking a construction site, protesting in a bank lobby, and protesting in
the offices of elected officials. During these encounters, ICCI members intentionally

-- 7 of 15 --

-8-
record themselves trespassing. They then send the video recordings to media outlets
to increase their advocacy efforts, draw attention to their message, and reveal any
violations of the law (other than their own). ICCI’s recording in this context is
arguably injected with a “constitutional interest” due to its communicative and
expressive purposes. Susan B. Anthony List, 573 U.S. at 159. Because ICCI and its
members have an arguable constitutional interest in recording themselves in this
manner, the Use Provision’s steep penalties chill their speech, which establishes an
injury in fact. As pled, this injury is causally attributable to the State officials,
meaning the first and second requirements for Constitutional standing are met.
Plaintiffs also meet the third requirement for Article III standing in that a
favorable decision will likely redress Plaintiffs’ injury. Redressability exists when
a favorable decision will relieve the plaintiffs of a discrete injury, even if it does not
relieve them of every injury, Minn. Citizens Concerned for Life, 113 F.3d at 131, or
if the risk of injury “would be reduced to some extent if [the plaintiffs] received the
relief they seek.” Massachusetts v. E.P.A., 549 U.S. 497, 526 (2007). ICCI claims
that enjoining the State officials from enforcing the Use Provision would remove the
“chilling” penalties. The State counters, claiming that application of Advantage
Media to this case requires concluding ICCI’s supposed injuries are not redressable.
Advantage Media involved a challenge to a city’s sign ordinance, which
prevented Advantage Media from displaying its signs as part of its commercial
speech. 456 F.3d at 796–97. In holding that Advantage Media did not plead
redressability, we noted other unchallenged city ordinances also prevented
Advantage Media from displaying its signs. Id. at 801. Thus, even if the challenged
provision were nullified, Advantage Media would not have received relief: its signs
would have remained prohibited. Id. This case is different. Whereas Advantage
Media could not get relief even if the challenged ordinance was invalidated, ICCI
pleads it will get relief should the Act be enjoined. ICCI’s members will go right
back to committing their still-unlawful acts of civil disobedience but without the fear
of the Act’s steep penalties, though they may still be prosecuted for general trespass.

-- 8 of 15 --

-9-
Thus, ICCI has pled facts showing its harm is redressable through judicial
intervention, and it satisfies all three requirements of Article III standing.
Because ICCI’s injury chills its speech, the ripeness requirement is also met.
When “a plaintiff alleges a chill on speech, ‘Article III standing and ripeness issues
. . . boil down to the same question.’” Vaught, 8 F.4th at 721 n.* (ellipses in original)
(quoting Susan B. Anthony List, 573 U.S. at 157 n.5). “For the same reasons that the
plaintiffs have adequately alleged Article III standing, the case is ripe for purposes
of Article III.” Id. Having decided that ICCI has standing and that the case is ripe
as pled, we need not address the standing of the other parties to challenge the Use
Provision at the motion to dismiss stage. See Elder, 54 F.4th at 1063.
2. Standing Under the Place Provision
As to Plaintiffs’ standing to challenge the Place Provision, we need not decide
whether Plaintiffs have a First Amendment right to place cameras on trespassed
property because Plaintiffs have not pled any facts suggesting they have historically
placed cameras or plan to place cameras on trespassed property.2 Plaintiffs only
plead they use cameras, not that they place cameras. See Compl. ¶¶ 3, 19, 37, 55,
75, 76, 78. Plaintiffs cannot say the Place Provision chills them from engaging in
2 Whether Plaintiffs have a constitutional right to place a camera on trespassed
property is doubtful because the act of placing a camera is per se trespassory. Iowa
law already prohibits the placing of “anything animate or inanimate” on the property
of another without permission. See Iowa Code § 716.7(2)(a)(1), (4). See also
Nichols v. City of Evansdale, 687 N.W.2d 562, 572 (Iowa 2004) (“As previously
stated, ‘fail[ing] to remove from the land a thing which [a person] is under a duty to
remove’ constitutes a trespass.”) (alterations in original) (quoting Restatement
(Second) of Torts § 158(c) (Am. L. Inst. 1965)). And the First Amendment does not
give would-be trespassers a license to ignore trespass laws. See Animal Legal Def.
Fund v. Reynolds, 8 F.4th 781, 785–86 (8th Cir. 2021). See also Lloyd Corp., Ltd.
v. Tanner, 407 U.S. 551, 568 (1972) (“[T]his Court has never held that a trespasser
. . . may exercise general rights of free speech on property privately owned and used
nondiscriminatorily for private purposes only.”).

-- 9 of 15 --

-10-
their desired conduct because they have shown no desire to place cameras. Because
the Place Provision does not injure Plaintiffs’ speech, they lack Article III standing
to challenge it.
B. Facial Validity
Because Plaintiffs’ challenge to the Use Provision is justiciable, we turn to the
district court’s facial invalidation of the Act. “We review de novo a district court’s
grant of summary judgment, viewing the facts in a light most favorable to the
nonmovant.” Murguia v. Childers, 81 F.4th 770, 774 (8th Cir. 2023). We apply
Federal Rule of Civil Procedure 56, using the same summary judgment standard as
the district court. See id.
For a facial challenge, Plaintiffs “would have to establish ‘that no set of
circumstances exists under which [the Act] would be valid,’ . . . or ‘that [the Act]
lacks any plainly legitimate sweep.’” Phelps-Roper v. City of Manchester, 697 F.3d
678, 685 (8th Cir. 2012) (en banc) (cleaned up) (quoting United States v. Stevens,
559 U.S. 460, 472 (2010)). Plaintiffs also raise a second type of facial challenge,
claiming that the Act is unconstitutionally overbroad. In the First Amendment
context, a law is overbroad when “a substantial number of its applications are
unconstitutional, judged in relation to the statute’s plainly legitimate sweep.”
Stevens, 559 U.S. at 473 (quoting Wash. State Grange v. Wash. State Republican
Party, 552 U.S. 442, 449 n.6 (2008)). “Because it destroys some good along with
the bad, ‘[i]nvalidation for overbreadth is strong medicine that is not to be casually
employed.’” United States v. Hansen, 599 U.S. 762, 770 (2023) (cleaned up)
(quoting United States v. Williams, 553 U.S. 285, 293 (2008)).
When reviewing a facial challenge, we do not look beyond the text of the
statute, nor do we examine how the Act applies to a plaintiff’s particular
circumstances. Hershey, 86 F.4th at 1231. Ultimately, Plaintiffs’ facial challenge
fails because the Act has a plainly legitimate sweep and it is narrowly tailored to
achieve the State’s significant government interests.

-- 10 of 15 --

-11-
The First Amendment, which has been incorporated against the states,
Thornhill v. Alabama, 310 U.S. 88, 95 (1940), generally prohibits laws “abridging
the freedom of speech[,]” U.S. Const. amend I. Because freedom of speech includes
expression through the making and sharing of videos, see 303 Creative LLC v.
Elenis, 600 U.S. 570, 587 (2023), we assume without deciding that the use of a
camera while trespassing implicates the First Amendment as protected activity. We
must then review the statute by applying the appropriate level of scrutiny. As the
district court correctly assumed, Plaintiffs’ facial challenge to the Act should be
reviewed under intermediate scrutiny because the Act represents a content-neutral
time, place, and manner restriction. See Peterson v. City of Florence, 727 F.3d 839,
843 (8th Cir. 2013).
Because we assume the Act regulates a constitutional right, the Act must be
narrowly tailored to serve the State’s significant governmental interests, City of
Austin v. Reagan Nat’l Advert. of Austin, LLC, 596 U.S. 61, 76 (2022), and “it must
not ‘burden substantially more speech than is necessary to further the government’s
legitimate interests,’” McCullen v. Coakley, 573 U.S. 464, 486 (2014) (quoting Ward
v. Rock Against Racism, 491 U.S. 781, 799 (1989)).
The State cited its interests as protecting the privacy interests of individuals
on their property, preventing the theft of trade secrets and proprietary information,
and deterring trespassers from wrongfully alighting onto a property to make a
recording. Plaintiffs recognized that the State has a “significant” interest in
protecting private property, and the district court recognized that “property rights
and privacy are important governmental interest[s].” Indeed, they are. See Animal
Legal Def. Fund v. Reynolds, 8 F.4th 781, 786 (8th Cir. 2021) (“[D]iminution of
privacy and a violation of the right to exclude [are] legally cognizable harms.”). The
only remaining question is whether the Act is narrowly tailored to serve the State’s
interests.
“Although a valid time, place, or manner regulation ‘need not be the least
restrictive or least intrusive’ means of serving the government’s interest, it may not

-- 11 of 15 --

-12-
restrict ‘substantially more speech than is necessary.’” Phelps-Roper, 697 F.3d at
693 (quoting Ward, 491 U.S. at 798–99). The district court held that the Act was
not narrowly tailored because “there are other laws currently in effect which cover
many of the instances where use of a video camera or electronic surveillance would
raise issues relating to privacy concerns.” Animal Legal Def. Fund, 630 F. Supp. 3d
at 1120 (discussing Iowa’s “peeping tom” and “invasion of privacy” laws). It
reasoned “[t]he existence of these other laws beg[s] the question what the Act was
intended to accomplish beyond targeting the express activities of organization[s]
such as Plaintiffs.” Id. In other words, because other narrower laws presumably
advance the State’s interests just as well, the district court reasoned that the Act—
with its sweeping ban on all uses of a camera while trespassing—is not narrowly
tailored to advance the State’s interests.
Proper characterization of the State’s interests is critical to the narrow-
tailoring analysis because the framing of the purported substantial interests can be
dispositive under our case law. A constrictive mischaracterization of the
government’s interests tends to unnecessarily invalidate a law. For example, in
Phelps-Roper v. City of Manchester, our en banc court vacated a prior panel decision
that had affirmed a district court’s injunction of a city ordinance. 697 F.3d at 683.
Members of the Westboro Baptist Church challenged an ordinance that “regulat[ed]
the time and place of picketing at funerals and burials.” Id. The ordinance
established a 300-foot buffer zone between funeral-picketers and funeral-attendees
“at the time of a funeral or burial service and for one hour before and after.” Id. at
694. In upholding the ordinance under intermediate scrutiny, we overruled prior
circuit decisions “which limited the government’s interest in protecting unwilling
listeners [only] to residential settings,” id. at 692, concluding that the city also
possessed significant interests “in protecting the peace and privacy of funeral
attendees[.]” Id. at 693. After reconsidering the city’s significant interests, we held
that the ordinance was narrowly tailored and remanded the case for entry of
judgment in favor of the city. Id. at 694–95. Similar to Phelps-Roper, we think the
district court’s analysis here did not fully account for the State’s significant interests,
which impacted its narrow-tailoring analysis.

-- 12 of 15 --

-13-
Given the significance of the State’s interests in stymieing surveillance-
trespass, the Act does not restrict more speech than necessary to achieve its ends.
The State seeks to protect property rights by penalizing that subset of trespassers
who—by using a camera while trespassing—cause further injury to privacy and
property rights. The State need not heighten the penalties for general trespass when
its interest is in preventing trespass-surveillance specifically. See Nat’l Press
Photographers Ass’n v. McCraw, 84 F.4th 632, 639, 655 (5th Cir. 2023) (holding
that a Texas statute outlawing drone surveillance on private property was narrowly
tailored because “the government’s ability to accomplish its goal of protecting
privacy rights would be ‘achieved less effectively’ absent the Surveillance
provisions”) (quoting Peavy v. WFAA-TV, Inc., 221 F.3d 158, 192–93 (5th Cir.
2000)).
Nor do other Iowa laws cited by the district court criminalize the same conduct
the Act does. For instance, Iowa’s “peeping tom” law prohibits filming without
consent “another person through the window or any other aperture of a dwelling . . .
if the person being viewed, photographed, or filmed has a reasonable expectation of
privacy[.]” Iowa Code § 716.7(2)(a)(7) (emphasis added). The peeping tom law is
limited in scope: it only protects persons in their homes from being recorded by
someone outside the home and filming through a window. Likewise, the cited
invasion of privacy law only prohibits a person from filming, without consent,
“another person, for the purpose of arousing or gratifying the sexual desire of any
person,” if the person being filmed “has a reasonable expectation of privacy while
in a state of full or partial nudity.” Id. § 709.21(1)(c). That law is limited to instances
when a voyeur tries to film a nude person to satisfy sexual desires. As the State
points out, these two laws protect privacy and property rights in a limited set of
circumstances.
As opposed to these two limited laws, the Act totally bans all uses of a camera
on trespassed property. Though this means the Act sweeps more broadly than these
other laws, that does not make it unconstitutional. “[T]he requirement of narrow

-- 13 of 15 --

-14-
tailoring is satisfied ‘so long as the . . . regulation promotes a substantial government
interest that would be achieved less effectively absent the regulation.’” Ward, 491
U.S. at 799 (ellipses in original) (quoting United States v. Albertini, 472 U.S. 675,
689 (1985)). The Act completely bans the use of a camera while trespassing, but
even “[a] complete ban can be narrowly tailored . . . if each activity within the
proscription’s scope is an appropriately targeted evil.” Frisby v. Schultz, 487 U.S.
474, 485 (1988). Indeed, our court has upheld government restrictions on
videotaping even when the public has a general right to access the venue or event to
be recorded, see Rice v. Kempker, 374 F.3d 675, 678–79 (8th Cir. 2004), so it follows
that the State’s interests in preventing recording are even stronger when the public
has no right to access the venue in the first place, see Frisby, 487 U.S. at 485
(“[I]ndividuals are not required to welcome unwanted speech into their own homes
and . . . the government may protect this freedom.”).
Without a doubt, trespassing is a legally cognizable injury because it harms
the privacy and property interests of property owners and other lawfully-present
persons. Trespassers exacerbate that harm when they use a camera while
committing their crime. The Act is tailored to target that harm and redress that evil.
Because the Act’s restrictions on the use of a camera only apply to situations when
there has first been an unlawful trespass, the Act does not burden substantially more
speech than is necessary to further the State’s legitimate interests. See McCullen,
573 U.S. at 486.
Whatever Plaintiffs’ First Amendment interests may be, we cannot “go
beyond [the Act’s] facial requirements and speculate about ‘hypothetical’ or
‘imaginary’ cases.” Wash. State Grange, 552 U.S. at 450. Because the Act has a
plainly legitimate sweep, it survives intermediate scrutiny against Plaintiffs’ facial
challenge. And because the Act does not prohibit a substantial amount of protected
speech relative to its plainly legitimate sweep, we hold that it is not
unconstitutionally overbroad. See Hansen, 599 U.S. at 769–70.

-- 14 of 15 --

-15-
III. Conclusion
For the reasons above, we affirm in part and reverse in part the district court’s
denial of the State’s motion to dismiss. Plaintiffs have standing to challenge the Use
Provision, but not the Place Provision. We reverse the district court’s summary
judgment order, vacate its permanent injunction, and remand for further proceedings
not inconsistent with this opinion.
______________________________

-- 15 of 15 --