Kansas Ag-Gag Law Debated at 10th Circuit

All parties agree the importance of agriculture in Kansas was the driving force behind a law barring subterfuge by people seeking to throw back the curtains on conditions at animal processing plants.

(AP Photo/Rich Pedroncelli, File)

(CN) — The state of Kansas asked a 10th Circuit panel on Tuesday to preserve a law specifically targeting individuals who lie to gain access to animal processing plants for undercover investigations.

Nonprofit organization Animal Legal Defense Fund sued the state in 2018 arguing that the Kansas Farm Animal and Field Crop and Research Facilities Protection Act specifically targets journalists and animal rights activists who investigate the agriculture industry.

The so-called Ag-Gag law passed in 1990. A decade later, a federal judge found parts of the law violated the First Amendment. Kansas appealed.

“It’s not a question of whether you can use the First Amendment as a shield to protect you under trespassing acts, but rather where you limit the scope of trespass action based on this speech that’s intended,” U.S. Circuit Judge Carolyn McHugh, a Barack Obama appointee, said at Tuesday’s hearing.

Kansas solicitor general Brant Laue represented the state.

“We would contend, to use your analogy, that this is an attempt to use the First Amendment as sword to gain access to private property that’s normally protected by trespass,” Laue said, emphasizing that “Entering a property is not speech.”

Senior U.S. Circuit Judge Michael Murphy, a Bill Clinton appointee, analyzed what the law protected that isn’t already covered under existing trespass law.

“Is there anything prohibited by this statute that isn’t generally prohibited by the criminal statute in Kansas?” Murphy pressed. “Is the whole purpose to increase penalties in other words?”

Laue confirmed the Kansas Farm Animal Act overlaps existing trespass statutes, adding, “That’s not unusual in Kansas, we also have a separate law for trespassing on nuclear generating facilities.”

The ag-gag law, however, specifically targets deceitful speech used to gain entry, rather than just banning the act of being there without permission. According to Animal Legal Defense Fund, 16 other states have similar laws on the books.

According to the organization’s legal brief, the law criminalizes undercover investigations that “have revealed systematic and horrific animal abuse in the commercial animal agriculture industry to authorities and to the public.”

As examples, the Animal Legal Defense Funds points to a Nebraska investigation which documented “pigs suffering for days or weeks with grossly prolapsed rectums, intestinal ruptures, large open wounds, and bloody baseball-sized ruptured cysts.”

In Texas, the group found “atrocious conditions suffered by the chickens and workers inside a Tyson Foods slaughterhouse, with birds left to suffocate by the hundreds on overcrowded conveyor belts and discarded, still alive, in heaps of dead and dying chickens, feathers and filth.”

In both cases, investigators applied for jobs to gain entry into the plants — an act of deceit specifically prohibited by the Kansas law.

U.S. Circuit Judge Harris Hartz, a George W. Bush appointee, presided over the hearing. He posed several hypotheticals to test the limits of the activists’ argument.

“Say someone comes on the property and starts filming and the owner says ‘I don’t like that, you have to stop,’ and the person says ‘No I have a First Amendment right to continue filming this,’ and the property owners says ‘I’ll call the cops then,’” Hartz said. “If the cop arrests the person for violation of the law of trespass, is that a violation of First Amendment rights?”

He added: “I don’t understand what’s so terrible about prohibiting deception when the person goes ahead and does something, they can be removed from the property and it wouldn’t be a First Amendment violation,” and pointed to the court’s own ban on photography as example.

Alan K. Chen, a civil rights attorney with the University of Denver Sturm College of Law, distinguished between the ag-gag law and general trespass statute. 

“That’s not what this law is, it isn’t general,” Chen replied. “This law specifically targets tactics used by undercover investigators.”

Chen noted the law also prohibited union organizers and civil rights testers from engaging in similar actions.

“Even if this were a technical trespass under Kansas law, the types of interests underlying trespass law are protection of the property owner’s ownership and possession of the land,” Chen said. “Even if someone accesses land through deception by lying about their affiliation with an animal protection group, it does not cause the kinds of trespassory harms that the law of trespass is designed to protect.”

McHugh tested the neutrality of the law.

“If I lied to enter this animal facility, but I did it because I wanted to post letters of appreciation to the facility and then write an article about how great it was, I wouldn’t be liable under the statute, correct?” McHugh asked.

Chen answered McHugh’s hypothetical lacked the prerequisite of harm.

“The law targets people who are critical of the animal agriculture industry,” Chen said. He closed by noting the importance of the agriculture industry to the Kansas economy as a driving force for the law — a point he and Laue agreed on.

Although the 10th Circuit is based in Denver, Colorado, the hearing was held remotely and broadcast via YouTube. The court did not indicate when or how it will decide the case.

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