Tenth Circuit Affirms Ruling Against Kansas Ag Gag Law

The Tenth Circuit Court of Appeals ruled in a 2-1decision on Thursday that parts of Kansas’ “ag-gag” law are unconstitutional, affirming the District of Kansas ruling.  Animal activists argued that the law, which is designed to deter organizations from performing undercover operations on agricultural businesses, restricts their freedom of speech.

This decision from the appellate court affirmed the prohibition against enforcement of specific provisions of the Kansas Farm Animal and Field Crop and Research Facilities Protection Act, which was the first law of its type in the United States. The law criminalizes entering an animal facility while intending to cause harm to the business without consent from the business owner and secretly taking pictures or videos of conditions. 

The plaintiffs, Animal Legal Defense Fund, Center for Food Safety, Shy 28, Inc., and Hope Sanctuary, argued that the law makes it harder for them to fulfill their purpose of making sure animals are treated well. The Animal Legal Defense Fund hires undercover investigators to obtain jobs at agricultural facilities to get information. 

The filing reported that Kansas argued in its appeal that the court erred because the law addresses conduct not speech, addresses speech with the intent to damage which the state claimed is not protected under the First Amendment, and that Kansas is “content – and viewpoint – neutral.” The Animal Legal Defense Fund disagreed with each of the three points. 

The panel noted that Kansas did not argue that the factual findings for the district court were wrong or that the permanent injunction would not be merited if the conclusion that the law violates the First Amendment was found to be correct. With the present ruling certain aspects of the law are not able to be enforced and the defendants are allowed to perform undercover operations. 

Judge Hartz dissented, saying “The task of this court is to decide only whether that statute is unconstitutional on the grounds raised in this appeal. And I see no merit to those grounds.” Specifically, the judge agreed that lying in order to access property is not protected under the First Amendment. 

Last week the Eighth Circuit ruled in two similar lawsuits, in one instance it ruled that an Iowa ag-gag law did not breach the constitution, and in another it reinstated the challenge to an Arkansas ag-gag law