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Federal appeals court rules Wyoming data-trespassing law subject to First Amendment

[JURIST] The US Court of Appeals for the Tenth Circuit [official website] ruled [opinion, PDF] Thursday that Wyoming Statute § 6-3-414(c) and Wyoming Statute 40-27-101(c) [text, DOC] are subject to First Amendment protections of free speech. The statutes, referred to as data-trespassing laws, define the crime of "civil trespass to access adjacent or proximate land" to occur if a person

i) Crosses private land to access adjacent or proximate land where he collects resource data; and
ii) Does not have:
(A) An ownership interest in the real property or, statutory, contractual or other legal authorization to cross the private land; or
(B) Written or verbal permission of the owner, lessee or agent of the owner to cross the private land.

The trial court had previously dismissed the challenge to the law after determining that it did not implicate free speech. The court of appeals found that section (c) implicates free speech because it would make it a crime to collect resource data, including taking photographs or writing notes on habitat conditions, on public lands if the person first trespassed on private property to reach the public property. The restriction applies directly to the creation of speech on public lands. Therefore, it is subject to the protections of the First Amendment. The trial court had also dismissed challenges to sections (a) and (b) of the same statutes, which refer to entering private land for the purpose of collecting resource data, and entering private land and collecting resource data, respectively. The court of appeals found that these two sections did not implicate free speech because the sections refer to conduct solely committed on private lands. The court of appeals remanded the case to the district court for a final decision on the constitutionality of the law.

The First Amendment protection of free speech is one of the most highly adjudicated constitutional rights. In August two civil rights groups filed [JURIST report] lawsuits against President Donald Trump's transgender military ban, claiming in part that the ban violated their right to free speech. In November a Pennsylvania court found [JURIST report] that a law not allowing out-of-county poll watchers did not violate free speech. In October Airbnb filed a lawsuit [JURIST report] against Senate Bill S6340A, which would have required Airbnb to screen and scrutinize every property, claiming it violated the company's free speech and due process rights. In July 2016, the Washington Supreme Court found an antibegging ordinance to be unconstitutional [JURIST report] due to violations to the protection of free speech.

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