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

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.

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


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  • identicon
    Anonymous Coward, 24 Aug 2021 @ 4:13pm

    Unlike 30 years ago when the law was passed, the Internet would make it impossible to enforce.

    Someone could give information to a foreign newspaper and that paper would be not be subject to US laws if they chose to publish.

    The person who have the information could be prosecuted, but the not the newspaper itself, if that newspaper is not in the USA.

    That is why, for example, Glenn Greenwals and Edward Snowden are subject to prosecution for what they did, but Guadrdian newspaper who published it, can never prosecuted, becuase, as a London-based newspaper, they are not subject to any United States. The business and their severs are in London, the Guardian only has to obey British laws in the stories they publish

    The same for applies for any newspaper outside the USA who published anything that violated the as gag laws. Whatever a foreign newspaper publishes is not subject to any United States laws.

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 24 Aug 2021 @ 5:26pm

    "The damage Kansas fears is that animal facilities may face “negative publicity, lost business[,] or boycotts.”"

    Kansas has no fear that allowing mistreated animals & questionable handling of products destined for citizens dinner tables is a bad thing.

    Kansas fears an outside group might force them to actually protect the public and enforce the laws that might make these corporations lose a few cents.

    Kansas fears if the public were to see how the sausage is made, they might have to do something that would upset their corporate sponsors.

    Kansas fears the public might learn that the things in 'The Jungle' - Upton Sinclair (1906) are still happening & now they just buy off the politicians to poison us.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 25 Aug 2021 @ 11:29pm

      Re:

      I could see farmers deploying jammers to prevent their facilities from being photographed.

      For right now, jamming data does not break any laws, though I would not surprised if Congress amends the CFAA someday to address that.

      reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 24 Aug 2021 @ 5:35pm

    Why shoot the messenger when you can sue them instead?

    If someone accurately describing and providing evidence of how you treat the animals on your farm is enough to get people angry and/or boycotting you the problem is not on the person who provided the evidence it's with you.

    Laws preventing people from trespassing and destroying property are sensible ones but the only beneficiaries I can think of for Ag-gag laws like this are horrible people who absolutely deserve to have the curtain ripped away and their 'business practices' shown to the public.

    reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 24 Aug 2021 @ 8:34pm

    Ethical farmers would be happy to invite people in to check out how great their farm is. This is something else.

    reply to this | link to this | view in chronology ]

    • identicon
      David, 25 Aug 2021 @ 6:17am

      Re:

      Ethical farmers would be happy to invite people in to check out how great their farm is.

      I don't think that kind of statement survives reality. There is no way that witnessing the production of sausage from start to finish will make you more likely to enjoy its consumption even in the most scrupulous environment.

      There is a reason that meat production has been outsourced from our daily life (heck, Platon already suggested passing the slaughtering to slaves in order not to desensitise the general populace). People may grow vegetables as a hobby. Nobody raises and slaughters pigs as a hobby.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 25 Aug 2021 @ 6:49am

        Re: Re:

        I don't think that kind of statement survives reality.

        Well, it definetly doesn't survive confusion/conflation about the subject.

        reply to this | link to this | view in chronology ]

      • icon
        JoeCool (profile), 25 Aug 2021 @ 7:31am

        Re: Re:

        I think living on a farm for at least part of your life should be mandatory, if only to show you how good you have it not being a farmer. There's a reason people moved away from farming the very instant the option arose.

        It would also give people more empathy for the more ethical farmers who are trying to keep everyone fed. There's a vast gulf between the normal farmer and the a-holes like those pushing the ag-gag laws. Without the experience of actually living on a farm, some might not see the difference.

        And yes, I've personally chopped the heads off chickens and killed cute little bunnies to put food on the table. Living on a farm made me quite happy with being an engineer instead of a farmer.

        reply to this | link to this | view in chronology ]

        • identicon
          Pixelation, 25 Aug 2021 @ 7:41am

          Re: Re: Re:

          ^This. The issue isn't that there is dirty work, hard work or gross work involved with farming, it's that those pushing Ag Gag laws want to hide what they are doing. Not a good look and I'm sure they don't care about appearances, except when it costs them money. Whore's gonna be whores.

          reply to this | link to this | view in chronology ]

      • identicon
        Michael, 25 Aug 2021 @ 12:06pm

        Re: Re:

        Nobody raises and slaughters pigs as a hobby.

        This is totally false, and makes me wonder where the hell you live.

        I knew people in PA and NV who raised hogs, chickens, and goats for food, and yes, it's just a hobby.

        Also, I'd very much like to see laws that every part of our food production -- from birth to slaughter to shipping -- be livestreamed. I'm eating this; I want to know precisely where it comes from and under what conditions.

        The fact that some might find this distasteful is irrelevent. Health concerns should take priority, and the only way for me to really know if safety procedures are being followed is if I can see it for myself.

        reply to this | link to this | view in chronology ]

  • identicon
    anon, 24 Aug 2021 @ 8:52pm

    re: AG law

    Just feed them to the hogs, eventually they'll stop trying.

    reply to this | link to this | view in chronology ]

  • identicon
    David, 24 Aug 2021 @ 11:26pm

    Injustice has been served

    This law dates all the way back to 1990

    The payout period of the investment in lobbying money for this blatant and obvious bit of unconstitutionality has been more than 30 years.

    That track record is rather fantastic and constitutes encouragement, not detraction.

    There need to be punishments for lawmakers and lobbyists, with prison terms for those cases of corruption most clearly designed to undercut and pervert justice. Otherwise this is just a call for rinse and repeat.

    reply to this | link to this | view in chronology ]

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  • icon
    idahogirl (profile), 26 Aug 2021 @ 3:42pm

    Same Laws for Abortion Clinics on Gathering Info?

    Once again, the information gathered wouldn't hurt anyone unless laws were being broken and then it would be the clinic's fault, correct? Didn't we just have this same thing happen in California and involves our now Vice President??? Individual rights weren't revealed but what they did with the aborted fetus? I believe they are going after the investigator for a variety of things including filming without permission. And don't tell me the Ag investigators wearing cameras aren't filming other employees and conversations as well. And one more thing, many kids raise hogs in rural areas - it's called 4-H. My kids raised several along with sheep, chickens, rabbits and other livestock. It's very common and then they show/sell them at the local fairs. Great programs that educate our kids. Don't get me wrong, I am a huge animal lover. I hate animal abuse. But rules need to be applied the same to everyone across the board.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Sep 2021 @ 7:56am

    IMO if an employer has applied any pressure on their employees to discourage collecting evidence of or reporting unlawful conduct, that should be treated as conclusive proof of the employer's culpability in that conduct.

    Additionally, it should be considered unconscionable to make any lawful aspect of an employee's life outside work a condition of employment, and a violation of labour rights to ask (whether or not they choose to answer), provided they arrive for their shift in fit state to work.

    Lastly, in the event of a dispute between an employee and their employer, in the absence of definitive proof from recordings, the employee's word should be presumed to be true, even if when dealing with another worker that worker's word was taken to be true (e.g. in a sexual harassment case, the company has to prove the alleged victim wasn't harassed when sued for that, but has to prove the alleged harasser did it to sack them

    reply to this | link to this | view in chronology ]


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