W. Watersheds Project v. Michael - 869 F.3d 1189 (10th Cir. 2017)

Rule:

The creation and dissemination of information are speech within the meaning of the First Amendment. Facts, after all, are the beginning point for much of the speech that is most essential to advance human knowledge and to conduct human affairs. If the creation of speech did not warrant protection under the First Amendment, the government could bypass the Constitution by simply proceeding upstream and damming the source of speech. Recognizing this danger, the United States Supreme Court has repeatedly extended the First Amendment to the creation of speech.

Facts:

In addition to its generally applicable law of trespass, the State of Wyoming has enacted a pair of statutes imposing civil and criminal liability upon any person who "[c]rosses private land to access adjacent or proximate land where he collects resource data." Wyo. Stat. §§ 6-3-414(c); 40-27-101(c). In light of the broad definitions provided in the statutes, the phrase "collects resource data" includes numerous activities on public lands, such as writing notes on habitat conditions, photographing wildlife, or taking water samples, so long as an individual also records the location from which the data was collected.

Issue:

Did Wyo. Stat. Ann. §§ 6-3-414, 40-27-101 (2016) regulate protected speech under the First Amendment?

Answer:

Yes

Conclusion:

The court held 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.