Federal court affirms unconstitutionality of Kansas ‘ag-gag’ law targeting whistleblowers

Statute shielding farmers from unwelcome scrutiny conflicts with First Amendment

By: - August 21, 2021 10:05 am
Federal appeals court affirms unconstitutionality of Kansas statute applying criminal penalty to activists that lie to get jobs at confined animal facilities to document mistreatment of animals because their actions protected by First Amendment. (Tim Carpenter/Kansas Reflector)

Federal appeals court affirms unconstitutionality of Kansas statute applying criminal penalty to activists that lie to get jobs at confined animal facilities to document mistreatment of animals because their actions protected by First Amendment. (Tim Carpenter/Kansas Reflector)

TOPEKA — The U.S. Court of Appeals echoed a lower court by finding a Kansas law applying criminal penalties to people taking jobs at agricultural facilities for the purpose of exposing allegedly unethical treatment of livestock was an unconstitutional violation of First Amendment rights.

The 2-1 decision handed down in the federal system’s 10th Circuit also affirmed an injunction forbidding Gov. Laura Kelly and Attorney General Derek Schmidt from enforcing the Kansas Farm Animal and Field Crop and Research Facilities Protection Act. It’s been on the books in Kansas since 1990, but amendments in 2012 enhancing criminal penalties drew the attention of animal-welfare activists and an avalanche of press freedom organizations.

Alan Chen, lead counsel for the plaintiffs and a professor of law at the University of Denver, said the appellate decision Thursday was a victory for animal welfare, free speech and transparency in the animal agriculture industry.

A Phillips County jury awarded landowners $134,000 after a prominent Kansas hog producer illegally installed pipe on their property to transfer liquified waste from a confined-animal facility so it could be sprayed on fields from irrigation pivots. A judge hasn't set punitive damages against Terry Nelson and Julia Nelson of northcentral Kansas. (Scott Olson/Getty Images)

Animal Legal Defense Fund, Center for Food Safety and other groups earn 10th Circuit U.S. Court of Appeals decision upholding unconstitutionality of Kansas law designed to keep whistleblowers from revealing animal abuse. (Scott Olson/Getty Images)

“Undercover investigations are crucial to keeping people informed about the frequently inhumane conditions in which these animals are kept,” he said.

Schmidt, who sought to upend the lower court’s ruling, said the Kansas law was modified to protect agricultural property rights by deterring people from gaining access to inner workings of cattle, hog or chicken confined feeding operations or slaughterhouses through deception with the intent of harming that business through public disclosure.

The Republican attorney general and candidate for governor referred to these activists as trespassers unconcerned about undermining the nation’s food supply. The attorney general argued the First Amendment didn’t create the right to trespass and prohibitions on video recordings in animal facilities didn’t implicate speech.

“Animal agriculture is vitally important to our state’s economic well-being,” Schmidt said. “We are carefully reviewing the court’s disappointing decision and will determine next steps in the weeks ahead.”

Schmidt said the U.S. Court of Appeals in the Eighth Circuit had recently upheld portions of a comparable Iowa law threatening criminal sanction for people who misrepresented their motives to gain access to a facility. The Eighth Circuit also found an Arkansas law leveling civil sanctions on whistleblowers to be unconstitutional, because it stifled speech. The 10th Circuit’s decision in the Kansas case amplified divisions that could be resolved by the U.S. Supreme Court.

Attorney General Derek Schmidt, center, faulted the U.S. Court of Appeals decision finding unconstitutional a Kansas law created to thwart activists from documenting conditions at confined animal facilities or slaughterhouses. (Sherman Smith/Kansas Reflector)

The Animal Legal Defense Fund, a national nonprofit that seeks to expose wrongdoing at animal facilities, worked with the Center for Food Safety and other groups to challenge constitutionality of Kansas’ so-called “ag-gag” law in 2018. The coalition attracted support from Kansas and national journalism organizations in a fight that centered on provisions of law that targeted speech, not merely conduct, because the state’s objective was to regulate what could be permissibly said in attempts to gain access to confined animal facilities.

In effect, the federal courts declared in Animal Legal Defense Fund vs. Kelly that Kansas couldn’t legislate speech to silence views critical of animal agriculture.

It meant videos, articles, advocacy and public dialogue inspired by whistleblowing and undercover investigations into treatment of animals and the way food was produced was at the core of the First Amendment.

“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 Stephen Wells, executive director of the Animal Legal Defense Fund. “The Tenth Circuit’s decision is a victory for animals throughout the state who are forced into industrial animal agriculture and suffer in secret behind closed doors.”

George Kimbrell, legal director for the Center for Food Safety, said the Kansas law — the oldest such law in the United States — enabled inhumane treatment of farm animals and denied people information about how food was produced.

The Animal Legal Defense Fund and Center for Food Safety were supported in the appeal by the Kansas Press Association, Kansas Sunshine Coalition for Open Government, ACLU Foundation of Kansas, Reporters Committee for Freedom of the Press, National Press Photographers Association, Politico LLC and Society of Professional Journalists.

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Tim Carpenter
Tim Carpenter

Tim Carpenter has reported on Kansas for 35 years. He covered the Capitol for 16 years at the Topeka Capital-Journal and previously worked for the Lawrence Journal-World and United Press International.