Kan. Ag-Gag Law Ruled Unconstitutional

OMAHA (DTN) -- Animal rights groups have asked a federal court to block the state of Kansas from enforcing its so-called "ag-gag" law that was recently found by a district judge to be a violation of free speech rights under the United States Constitution.

Ag-gag laws across the country are aimed at thwarting undercover investigations of agriculture facilities in order to protect the business interests and property of farmers. Similar laws in other states have faced legal challenges.

On Jan. 22, 2020, the U.S. District Court for the District of Kansas ruled the state's 1990 Kansas Farm Animal and Field Crop and Research Facilities Protection Act violated free speech rights. Two days later, the animal rights groups led by the Animal Legal Defense Fund asked the court to issue a permanent injunction to prevent the state from enforcing the law.

A spokesperson at the Kansas Attorney General's office told DTN the state is reviewing the court's decision to determine next steps in the case.

The Kansas law makes it a crime for anyone to take pictures or to film video of animal facilities without the owner's consent, with the intent to "damage the enterprise."

The law also prohibits anyone to gain access to animal facilities "without the effective consent of the owner" and with the "intent to damage the enterprise."

In its Jan. 22 opinion, the court said the Kansas law violated the Constitution.

"First, the prohibition on deception limits what plaintiffs may or may not say," the court said in its opinion.

"Plaintiffs intend for an ALDF investigator to speak to an animal facility owner to gain access to an animal facility, and whether the investigator violates the deception provision ... depends on what he or she says. They restrict the communication an investigator may have with an animal facility owner. This is a regulation of speech in its most basic form."

The court also agreed with the animal rights group that because the law prohibits the taking of pictures or video at animal facilities, it regulates free speech.

"The Supreme Court has held that creation and dissemination of information are speech, and this includes videos, photographs and recordings," the court said.

In addition, the court cited a recent U.S. Court of Appeals for the 10th Circuit ruling that "collection of resource data," defined by law to include taking photographs, "constituted the protected creation of speech."

"The 10th Circuit further stated that '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,'" the Kansas court said, ruling the Kansas law regulates that type of speech.

The Animal Legal Defense Fund filed its complaint in December 2018. The lawsuit said the law has "shielded the state's animal agriculture industry from public scrutiny for almost three decades."

The proliferation of ag-gag laws across the country has seen limited success.

Similar litigation continues in Iowa and North Carolina.

In December, a federal court in Iowa granted a preliminary injunction against the state's new ag trespass law, as a result of a lawsuit also filed by the Animal Legal Defense Fund.

The state of Iowa has experienced a series of legal defeats in its attempts to stop undercover investigations at agriculture facilities.

In January 2019, a federal judge in Iowa ruled the state's original 2012 law was a violation of free speech.

Iowa's 2012 law came about after at least a couple of widely publicized investigations into hog operations. The law made it illegal to enter a livestock facility under false pretenses or lie on a job application to work for a livestock operation. It was meant to effectively criminalize undercover investigations on livestock farms.

Attempts to pass ag-gag laws have failed in 17 states, including Washington, California, Arizona, New Mexico, Colorado, Nebraska, South Dakota, Minnesota, Illinois, Indiana, Kentucky, Tennessee, Florida, Pennsylvania, New York, Vermont and New Hampshire.

In addition to the Kansas law, similar laws have been found to be unconstitutional in Idaho, Utah and Wyoming.

Laws currently remain in effect in Montana, North Dakota, Missouri, Arkansas and Alabama.

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @toddneeleyDTN

(CZ/AG)

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