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Supreme Court Declines to Review Unconstitutional Ruling of Kansas “Ag-Gag” Law

The exterior of a poultry barn.

A newly constructed single story poultry barn in a rural setting.

The Center for Food Safety issued a press release on Tuesday, discussing the United States Supreme Court’s decision to decline to review a Tenth Circuit ruling. The decision reinforces the Tenth Circuit’s opinion, which effectively struck down Kansas’s “Ag-Gag” law for its violation of the First Amendment.

In 2018, a coalition led by the Animal Legal Defense Fund (including the Center for Food Safety) filed a lawsuit challenging the Kansas law’s constitutionality. The Animal Legal Defense Fund, or ALDF, is an animal law advocacy organization. The aforementioned law criminalized any undercover investigations of animal facilities for health and animal welfare violations, which the Center for Food Safety states are essential to reveal the “horrific treatment of farmed animals and food workers to the public.”

The ALDF-led coalition argued that the law was unconstitutional since the undercover investigations relate to a matter of public concern and reveal speech that is covered under the First Amendment. The ag-gag law was found unconstitutional by the Tenth Circuit on the grounds that the law “elevates form over substance and permits Kansas to do just what the First Amendment prohibits.”

Following this finding, Kansas applied for a writ of certiorari to the Supreme Court, arguing that the case is exemplative of a circuit split on ag-gag laws in about 12 other states. The ALDF countered that since the Tenth Circuit’s finding was based on viewpoint discrimination grounds, the case did not give rise to a circuit split. They expanded on this, adding that the Supreme Court should refrain from hearing the case since it is premature to make a comprehensive ag-gag ruling due to conflicting laws across the country.

The Supreme Court declined to review the decision. The ALDF Executive Director Stephen Wells noted that the decision was a victory that left intact “the public’s constitutional rights over protecting corporate interests and profits.”

A University of Denver law professor, Alan Chen, who helped lead the lawsuit against Kansas, stated that the Supreme Court decision “leaves in place important constitutional protections for investigators working with animal rights groups to expose misconduct in the industrial animal agriculture industry.” The Kansas suit is one of many that the ALDF has filed across the country.

The plaintiffs in this case were represented by Orrick, Herrington & Sutcliffe.

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