Free Speech Challenge to Anti-Environmental Statute Revived

Western Watershed Project v. Michael, 869 F.3d 1189 (9/7/17) (Wyo. Published) - The 10th revives a challenge to a Wyoming anti-environmentalist criminal statute on First Amendment grounds. The statute provides for up to a one-year prison term and a mandatory repeat-offender 10-days in jail for anyone who crosses private land without the owner's permission to access public land where he or she "collects resource data." "Collects resource data" means (1) taking a sample of material or acquiring, gathering, photographing or otherwise preserving information in any form and (2) recording a legal description or geographical coordinates of the collection locations. So, the statute covers writing notes on habitat conditions, photographing wildlife, audio recording of one's observations of vegetation or taking water samples so long as the person also records the location from which the data was collected. The district court held "collecting resource data" was not protected speech. The 10th disagrees. It holds that recording data is the protected creation of speech. It points out the data is needed to provide public input to public agencies, such as the U.S. Fish and Wildlife Service. The 10th rejects the state's claim that the statute is just regulating trespassing on private lands where trespassers don't have free speech rights. The 10th notes the violation occurs on public lands where the violator is subject to higher punishment than a trespasser would receive and there's no mens rea requirement as there is for the trespassing statute. That one aspect of the statute concerns private property does not defeat First Amendment scrutiny. The 10th cautions that its holding doesn't mean all regulations incidentally restricting access to information triggers First Amendment analysis. Nor may people challenge otherwise generally applicable laws that interfere with gathering information. Here Wyoming treats individuals creating speech differently than other folks. In the end, this doesn't mean final victory for freedom of speech. The 10th remands the case to the district court to apply a certain unstated level of scrutiny and decide if the statute survives that review.