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

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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 ____________ 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- 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 u