The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

About The Volokh Conspiracy Editorial Independence Who we are Books Volokh Daily Email Archives Search DMCA RSS

Free Speech

Eighth Circuit Upholds Ban on Trespassing for Surveillance Purposes

Eugene Volokh | 4.25.2026 8:01 AM

From PETA, Inc. v. Reynolds, decided Thursday by the Eighth Circuit (Judge Steven Grasz, joined by Judges James Loken and Raymond Gruender):

[Iowa's] general trespass statute defines "trespass" to include "[e]ntering or remaining upon or in property … after being notified or requested to abstain from entering or to remove or vacate therefrom by the owner …." "A person has been notified or requested to abstain from entering or remaining upon or in the property … if … [t]he person has been notified to abstain from entering or remaining upon or in property personally, either orally or in writing …." When an ordinary trespass does not result in bodily injury or property damage exceeding $300, the offense is a "simple misdemeanor" and is punished by a fine between $105 and $855 and up to 30 days of imprisonment.

In 2021, Iowa decided its general trespass statute was not deterring trespassers from unlawfully entering private property to record their trespasses. So it enacted § 727.8A to create a new "trespass-surveillance" offense, which it treated more harshly than ordinary trespass. For instance, under § 727.8A,

[a] person committing a trespass as defined in section 716.7 who knowingly places or uses a camera or electronic device that transmits or records images or data while the device is on the trespassed property commits an aggravated misdemeanor for a first offense and a class "D" felony for a second or subsequent offense.

Iowa punishes aggravated misdemeanors with a fine between $855 and $8,540 and up to two years of imprisonment, and class D felonies with a fine between $1,025 and $10,245 and up to five years of imprisonment.

Two … animal-welfare groups, including ICCI [Iowa Citizens for Community Improvement], developed as-applied challenges on remand, contending the statute's prohibition against using cameras while trespassing chills their members' speech when applied........

© Reason.com