(CN) — The 10th Circuit on Thursday affirmed a previous court ruling that sections of Kansas’ “ag-gag” law is unconstitutional and violates the First Amendment rights of animal rights advocates.
In 1990, Kansas was the first state to pass an “ag-gag” law, legislation that criminalizes undercover filming on farms without the owner’s consent. Animal rights organizations typically have had their members go undercover as workers on such farms to document abuse of animals.
A three-judge panel ruled 2-1 that the Kansas Farm Animal and Field Crop and Research Facilities Protection Act violates free speech rights under the First Amendment. The law specifies that using false statements to gain entry with the intent of damaging the business is illegal.
Writing on behalf of the majority, U.S. Circuit Judge Carolyn McHugh, a Barack Obama appointee, said the distinction of intent was important to the court’s ruling.
“Even if deception used to obtain consent to enter is unprotected speech due to the entry upon private property, Kansas may not discriminate betweens speakers based on the unrelated issue of whether they intend to harm or help the enterprise,” she wrote.
"Dissemination of true information cannot be a legally cognizable harm," McHugh wrote, referring to unprotected speech as defined by the U.S. Supreme Court.
McHugh was joined by Senior U.S. Circuit Judge Michael Murphy, a Bill Clinton appointee. U.S. Circuit Judge Harris Hartz, a George W. Bush appointee, said in a dissent that he did not find the law unconstitutional.
"Lies uttered to obtain consent to enter the premises of an agricultural facility are not protected speech," he said.
The case goes back to a lawsuit filed in 2018 by the Animal Legal Defense Fund and other animal rights organizations.
“Today’s Tenth Circuit decision is a big victory for free speech, for transparency in the animal agriculture industry, and for animals,” said Alan Chen, lead counsel for the plaintiffs. “Undercover investigations are crucial to keeping people informed about the frequently inhumane conditions in which these animals are kept.”
Kansas has the third-most cows of any state, the group said in a statement, “and until being struck down, its Ag-Gag law had successfully prevented whistleblowers from investigating the conditions that millions of pigs, cows, and chickens endure.”
“Kansas has hindered the ability of whistleblowers to expose inhumane conditions associated with factory farms for more than three decades while infringing on First Amendment rights,” said Animal Legal Defense Fund Executive Director Stephen Wells.
Neither Kansas Governor Laura Kelly nor state Attorney General Derek Schmidt could be immediately reached for comment Thursday night.
Several other states which have passed “ag-gag” legislation are facing legal challenges to their laws under accusations that they violate the First Amendment.
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