Appeals Court Shuts Down Kansas' 30-Year-Old Ag Gag Law

Free Speech

from the good-things-come-to-those-who-wait-until-2018-to-raise-a-challenge dept

Another “ag gag” law has been shown the door by the courts. The Tenth Circuit Court of Appeals has declared Kansas’ “Farm Animal and Field Crop and Research Facilities Protection Act” (whew!) nothing more than a bunch of First Amendment violations trying to present themselves as a legitimate restriction on access to agricultural facilities. (via Courthouse News Service)

This law dates all the way back to 1990, but it’s finally being shut down after a successful challenge by the Animal Legal Defense Fund. The ALDF sued in 2018, pointing out the law’s obvious constitutional problems. The law criminalizes certain deception in the service of trespassing. Why trespassing couldn’t have been handled by existing laws was never explained, but one should never underestimate legislators’ desire to please some of their biggest local donors.

What the law sought to criminalize were investigations performed by the ALDF, which necessarily involved some form of deception to gain access to farms and dairies. How the ALDF does its work is detailed in the opening of the Tenth Circuit’s decision [PDF]:

ALDF is a national non-profit organization that seeks in part to expose wrongdoing at animal facilities. ALDF conducts undercover operations through investigators who seek employment at animal facilities. Although these investigators do not falsify qualifications, they will not reveal their association with ALDF or their purpose in seeking a job; if asked directly, the investigators will falsely state they were not sent by an animal rights organization.

Once employed by an animal facility, investigators wear hidden cameras, often in violation of posted notices forbidding recording. An investigator may accept a supervisory position through which she might exercise authority over, or temporarily close off a portion of, a facility to record conditions without being caught. Although investigators do not take animals or property or intentionally cause any physical harm to the facility or animals, the investigators’ actions could uncover conditions warranting public officials’ seizing and removing animals. ALDF will seek that result if an investigator uncovers evidence ALDF believes warrants criminal investigation or removal of animals for their welfare.

Rather than do better as business owners and facility operators, new laws were requested and passed. According to the ALDF, it has not performed any of its investigations in Kansas because of the new law, which would subject investigators to criminal charges. It managed to secure an injunction from the district court after the state failed to even try to argue its law met the strict scrutiny standard for the regulation of speech. Nonetheless, it appealed the lower court’s decision, resulting in it being told the same thing from the next level up.

Citing its own precedent, the Tenth Circuit says gathering information is protected speech, even if falsehoods are used to enable the information gathering.

“An individual who photographs animals or takes notes about habitat conditions is creating speech in the same manner as an individual who records a police encounter.” Id. We held the restricted activities fell “within the ambit of the First Amendment.” Id. at 1197. Western Watersheds Project thus unambiguously holds that recording—and even more specifically, recording of animals or the conditions in which they live—is speech-creation and, consequently, is not mere conduct.

The parts of the law being challenged by the ALDF are unconstitutional, the court says.

Subsections (b), (c), and (d) of the operative section involve speech rather than merely conduct because they regulate what may be permissibly said to gain access to or control over an animal facility. Subsection (c) also directly proscribes recording, which we have held is speech-creating activity within the ambit of the First Amendment. All three subsections specifically forbid speech that is made with the intent “to damage the enterprise conducted at the animal facility.” §§ 1427(b), (c), (d). […] Because the intent to damage the enterprise element present in all three subsections does not necessarily constitute the sort of harm required for false speech to be unprotected under Alvarez, we conclude the viewpoint discrimination on this basis subjects the relevant subsections of the Act to strict scrutiny. Kansas has not attempted to meet its burden under that standard; we therefore affirm.

[…]

The Act’s broad proscriptions include prohibiting speech, such as a statement made to obtain the consent of the owner of an animal facility to exercise control over it. The Act thus regulates not only what ALDF investigators may or may not do, but what they “may or may not say.”

While it may be true that ALDF investigations will eventually cause harm to these facilities, the harms are not directly related to the false speech. And, indeed, ALDF investigators have no intention of causing direct harm to these businesses’ property. Merely being duped into granting access cannot be criminalized, because it directly limits the free speech rights that flow from that access. And the harms the law attempts to address are not harms flowing from that false speech. The harms that may result come from facts these businesses would rather not have publicly disseminated.

The damage to the enterprise intended from ALDF’s investigations does not flow directly from deceiving the animal facility owner into allowing entry. Damage occurs only if the investigators uncover evidence of wrongdoing and share that information, resulting in other actors choosing to take further actions. This is too attenuated from the false speech to be the sort of harm Alvarez is concerned with. It is not like defamation, where the false speech directly causes reputational harm; fraud, where the false speech causes someone to hand over a thing a value; or perjury, lies to the government, or impersonating a government official, where the speech itself harms our institutions. Rather, there are numerous further causal links between the false speech and the animal facility suffering damage.

Whatever legally cognizable harm is, it cannot be harm from protected, true, speech. The damage Kansas fears is that animal facilities may face “negative publicity, lost business[,] or boycotts.” Appellant Br. at 22. But these harms would be accomplished by ALDF disseminating true information—to the extent that information is injurious, it does not cause legally cognizable harm.

The court says this sort of harm is not only not criminal, it’s legally-protected. The blowback from the exposure of wrongdoing is the fault of the wrongdoer, not the person who exposes it. In that sense, the law not only criminalizes outside investigations, but whistleblowing by employees, who may have to engage in deception to document wrongdoing.

And with that, the three challenged sections of the law are no longer valid. They’re unconstitutional and the injunction forbidding the state from enforcing those sections is permanent. If local businesses want to avoid the harms that come from whistleblowing and undercover investigations, the best thing to do would be to end abuse and wrongdoing in their facilities. Allowing the state to shelter them from the consequences of their own wrongdoing is not only morally suspect, it’s officially unconstitutional.

Filed Under: 10th circuit, 1st amendment, ag gag, free speech, kansas