November 18, 2017

Tenth Circuit: Collection of Resource Data Considered Protected Speech Under the First Amendment

The Tenth Circuit Court of Appeals issued its opinion in Western Watersheds Project v. Michael on Thursday, September 7, 2017.

The State of Wyoming has enacted a pair of statutes imposing civil and criminal liability on individuals who enter open land for the purpose of collecting resource data without permission from the owner. “Resource data” was defined as data relating to land or land use. And the term “collect” was defined as requiring two elements: (1) taking a sample of material or a photograph, or otherwise preserving information in any form that is (2) submitted or intended to be submitted to any agency of the state or federal government. Information obtained in violation of these provisions could not be used in any proceeding other than an action under the statutes themselves. The statutes also required government agencies to expunge data collected in violation of their provisions and forbade the agencies from considering such data in determining any agency action.

The Tenth Circuit Court of Appeals concluded that the statutes regulate protected speech under the First Amendment and that they are not shielded from constitutional scrutiny merely because they touch upon access to private property. The statutes at issue target the creation of speech by imposing heightened penalties on those who collect resource data.

Plaintiffs in this case are advocacy organizations, arguing that the statutes violated Free Speech and Petition Clauses of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment, and they were preempted by federal law. After the district court’s holding that Plaintiffs have stated claims for free speech, petition, and equal protection, Wyoming amended the two statutes, although the statutes continue to impose heightened criminal punishment and civil liability. The amendments penalize any individual who without authorization: (1) enters private land for the purpose of 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. Under the current version of the statutes, there is no requirement that resource data be submitted to, or intended to be submitted, to a government agency. Instead, the term “collect” now means: (1) to take a sample of material or acquire, gather, photograph or otherwise preserve information in any form; and (2) to record a legal description or geographical coordinates of the location of the collection. The district court concluded that the revised version of the statutes did not implicate protected speech, Plaintiffs appealed to the Tenth Circuit.

The Tenth Circuit found that Wyoming already prohibits trespass, thus the effect of the challenged provisions is to increase a pre-existing penalty for trespassing if an individual collects resource data from public lands. 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 Circuit concluded that the Plaintiffs’ collection of resource data constitutes the protected creation of speech, as the Supreme Court has explained that the creation and dissemination of information are speech within the meaning of the First Amendment; however, the court did not discuss the level of scrutiny to be applied, as the district court did not conduct an analysis on this matter and, as a general rule, the court will not consider an issue not passed upon below.

The Tenth Circuit Court of Appeals REVERSED the district court’s conclusion that the statutes are not entitled to First Amendment protection and REMANDED for further proceedings consistent with this opinion.

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