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November 2024 Animal Law Updates: Trespass as Ag-Gag Lite (and Using Store Bathrooms)

Author Bio

Jareb Gleckel received his J.D. magna cum laude from Cornell Law School and his B.A.... Read More

Here’s a picture that’s hopefully not too close to home: you’re traveling for the holiday, and your kids are yelling that they need to use the bathroom, so you pull over at a shopping center and walk into the first store you see. In the past (naturally, you’ve been in this position before), some nasty store manager has said the bathroom is for paying customers only. So, when you go into the store and ask for the restroom, you comment about how nice the trinkets are, pretend you’re interested in buying, and the manager lets you in. Then your kids use the bathroom, and you leave.

It may surprise you to learn that, absurd though it may seem, in some states, there’s an argument you’ve trespassed.

Trespass is one of the oldest and, traditionally speaking, most basic torts. If Anne voluntarily enters Bob’s property without permission, then Anne is liable for trespass. A “voluntary” entry is, moreover, a very low bar. If someone pushed Anne, then Anne has a defense because falling is involuntary. If Anne walks onto the property because she is confused about the property boundary, she’ll probably still be on the hook because she walked there voluntarily.

As far as the store bathroom, you may be thinking, I can’t be trespassing because the store manager gave my kids and me permission. But that’s where trespass law gets interesting. In some states, if a person uses deception in obtaining consent, the consent doesn’t count. In this example, it’s likely that the manager would not have let the kids use the restroom unless you were truly interested in buying from the store. The argument that you’re a trespasser goes: since you tricked the manager, you never had true permission to bring your kids into the restroom.

Trespass as Ag-Gag Lite

Several agriculture-friendly states have passed laws to chill investigations of the industry, which are often the only way to show the public what happens behind closed doors. These laws are called “ag-gag” laws because they “gag” activists from exposing the truth about factory farms, slaughterhouses, and other industry practices. Because ag-gag laws target Animal rights activists, they get a lot of attention in the Animal rights movement.

Ag-gag laws are not, however, the only laws that can hamper investigations, and trespass is a prime example. Most straightforwardly, trespass laws prevent investigators from breaking into a factory farm. But as we have seen above, they may prevent even more. What if an investigator gives a fake name on an application to work at a slaughterhouse? Does this deception vitiate the establishment’s consent and leave the investigator liable as a trespasser? And when, more broadly, can lying make someone a trespasser?

The answer, as is often the case in law, is “it depends.” On the one hand, we want to protect property owners from a person who dresses up as a worker with the oil company, claims to be there to fill the oil tank, and robs them. On the other hand, we don’t want a restaurant critic getting sued for preserving her anonymity. We also don’t want the law to make her a trespasser if she lies about how cute her boss’s kids are to get an invite to a work party. There’s a reason the First Amendment protects all speech, including deceptive speech, and that laws punishing speech have to be finely tuned, not broadly applicable. Both society and the law itself often condone lies used to gather truths. Acclaimed journalists have used deception to expose everything from slavery to elder abuse in nursing homes. Law enforcement officers can use deception to pose as a suspect’s friend and then record incriminating conversations, even without getting a warrant.

Still, judges and legal scholars have different views about exactly where property rights begin and speech rights end—which in itself is problematic. “It depends” is not a great answer for investigators because investigators, like all speakers and even actors, benefit from clarity about what they can and cannot do.

We think the solution to this problem is a bright-line test that, in short, says a person trespasses if they deceive the landowner as to the nature of the entry onto the property. (In trespass law, “entry” includes subsequent presence on and use of the property.) Unlike a burglar who deceives a homeowner as to his identity and robs the house, a restaurant critic may deceive a restaurant as to her identity, but she doesn’t deceive the restaurant about the use of the property: she’s still eating there. Under our test then, which we call the “Nature of Entry” test, the burglar may have trespassed, but the restaurant critic did not. The parent whose kids needed the restroom—also not a trespasser. She may have tricked a shopkeeper into thinking that she’d make a purchase, but she said her kids needed to use the restroom, and that’s exactly what they did. Likewise, if an investigator lies about his name, gets a job at a slaughterhouse, and observes how animals are treated while performing that job, the investigator should not be liable for trespass.

These kinds of issues are not as flashy as big cases, but in our view, they’re a central part of animal law. Investigations are the best way to expose the truth about the industry, and protecting investigators is central to making that happen. If you’re interested in reading more, you can check out our article, Free Speech Versus Property: When Deception Can (And Can’t) Give Rise to Trespass, which is forthcoming in the USF Law Review.

*Please note that examples are hypothetical and not intended as legal advice.

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