Federal Appeals Court Rules Wyoming Data Trespass Laws Violate First Amendment
A federal appeals court in Denver says a pair of Wyoming statutes violate the First Amendment of the U.S. Constitution, and a federal judge in Wyoming must reconsider advocacy groups’ challenge to the statutes.
“We conclude that the statutes regulate protected speech under the First Amendment and that they are not shielded from constitutional activity merely because they touch upon access to private property,” reads Thursday’s ruling by the 10th U.S. Circuit Court of Appeals.
The Wyoming Legislature in 2015 created Wyoming Statutes 6-3-414 and 40-27-101, which create criminal and civil penalties for anyone who would “trespass unlawfully to collect resource data.” Wyoming already had trespassing penalties on the books; the statutes made available additional penalties.
Originally, the statutes prohibited anyone from entering “open land for the purpose of collecting resource data” without the landowner’s permission.
A lawsuit by advocacy organizations led the Legislature to amend the two statutes — lawmakers in 2016 removed references to “open lands,” but maintained the heightened criminal punishment.
The revised statutes instead allowed for penalties for anyone who “(1) enters private land ‘for the purpose of collecting resource data'; (2) enters private land and ‘collects resource data'; or (3) ‘crosses private land to access adjacent or proximate land where he collects resource data.'”
Advocacy groups went back to court to challenge the new versions of the statutes, again claiming the laws violate free speech and equal protection. The court concluded the revised statutes did not implicate protected speech, and granted a motion to dismiss the suit.
In that instance, the 10th Circuit says, the court relied on U.S. Supreme Court precedent that the First Amendment does not protect people who wish to “engage in speech on the private property of others.”
While the first two subsections of the statutes in question govern actions on private property, the third subsection — applicable to anyone who “crosses private land to access adjacent or proximate land where he collects resource data” — regulates activity on private property, under a ‘plain-text’ reading.
That’s where, the 10th Circuit rules, the First Amendment comes into play.
“Defendants counter that the statutes regulate public land only if an individual first trespasses on private land. They characterize plaintiffs’ argument as asserting a right to trespass. That framing misstates the issue,” Thursday’s ruling reads. “Wyoming already prohibits trespass in general, albeit with lesser penalties than provided of in the statutes at issue… Thus, the effect of the challenged provisions is to increase a pre-existing penalty for trespassing if an individual subsequently collects resource data from public land.”
“To determine if such provisions are subject to scrutiny under the First Amendment, the question is not whether trespassing is protected conduct, but whether the act of collecting resource data on public lands qualifies as protected speech,” the ruling continues.
It does, according to the 10th Circuit. The collection of resource data — “…defined as ‘data relating to land or land use,’ including that related to ‘air, water, soil, conservation, habitat, vegetation or animal species…'” — constitutes the protected ‘creation’ of speech, the ruling says.
“An individual who photographs animals or takes notes about habitat conditions is creating speech in the same manner as an individual who records a police encounter,” the court writes. “Moreover, plaintiffs use the speech-creating activities at issue to further public debate.”
The ruling applies strictly to subsection (c) of the 2016 statutes. The court has remanded the matter, meaning the lower court will reconsider it in light of the 10th Circuit’s findings.