In an unusual case, Western Watersheds Project, et al v. Michael, Attorney General of Wyoming, decided on September 7, 2017, the U.S. Court of Appeals for the Tenth Circuit reversed the District Court’s decision that recently-enacted Wyoming laws which impose civil and criminal liability on any persons who “cross private land to access adjacent or proximate land where he collects resource data.”

The 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. Although trespassing does not enjoy First Amendment protection, the statutes at issue target the ‘creation’ of speech by imposing heightened penalties on those who collect resource data.

It appears that the State of Wyoming perceived that environmental advocacy groups were crossing private property without permission or authorization to access public lands to investigate conditions on those lands that implicate environmental conditions or the welfare of protected species. The District Court granted the State’s motion to dismiss the lawsuit challenging the constitutionality of these laws on the basis that they do not regulate First Amendment activity because the intent of the law was to respond to the actions of trespassers or uninvited guests crossing private property.

However, the Tenth Circuit determined the specific provisions of the law that were being challenged have the effect of regulating activity on public property (“collecting resource data” in the words of the statute), and this constitutes the “protected creation of speech.” Indeed, an individual “who photographs or takes notes about habitat conditions is creating speech in the same manner as an individual who records a police encounter,” which the courts have recognized as warranting First Amendment protection.

In addition, the fines imposed by these new laws substantially exceed the fines levied for other forms of trespass under Wyoming law. The case was remanded to the District Court to give that court an opportunity to conduct a more intensive First Amendment analysis of this law.