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.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: 10th circuit, 1st amendment, ag gag, free speech, kansas
Reader Comments
Subscribe: RSS
View by: Time | Thread
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.
[ link to this | view in chronology ]
Re:
The same applies to any newspaper inside the US as well, see NYT v US (1971).
[ link to this | view in chronology ]
"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.
[ link to this | view in chronology ]
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.
[ link to this | view in chronology ]
Re: Re:
The FCC might have something to say about people causing interference with a licensed spectrum user.
[ link to this | view in chronology ]
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.
[ link to this | view in chronology ]
Ethical farmers would be happy to invite people in to check out how great their farm is. This is something else.
[ link to this | view in chronology ]
Re:
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.
[ link to this | view in chronology ]
Re: Re:
Well, it definetly doesn't survive confusion/conflation about the subject.
[ link to this | view in chronology ]
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.
[ link to this | view in chronology ]
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.
[ link to this | view in chronology ]
Re: Re:
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.
[ link to this | view in chronology ]
re: AG law
Just feed them to the hogs, eventually they'll stop trying.
[ link to this | view in chronology ]
Injustice has been served
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.
[ link to this | view in chronology ]
Lawrence Cleaning Solution
We proudly provide warehouse cleaning services up and down the West Midlands from our base in Dudley.
Throughout our over 35 years of Commercial Cleaning services, we’ve built up a fundamental understanding of what companies in all sectors need from a cleaning services provider.
https://www.lawrencecleaning.co.uk/
[ link to this | view in chronology ]
Digital promotion
Digital promotion uses social media, phones, and other electronic devices to advertise or sponsor a product or service. This includes those fancy electronic billboards that are alongside highways and heavily trafficked areas.
For more information visit https://www.digitpro.co.uk/what-is-digital-promotion/
[ link to this | view in chronology ]
Companion Guide satuts
Family Tree Maker is an application. It helps users to store the data of a person.
A user can enter information like when a person was born, marriage, achievement,
and death information. Users can include citations and detailed notes in family tree
maker software. Family Tree Maker has a user-friendly interface, this is why it is well-known and most desired software for genealogy.
<a herf="https://familytreemakersupport.com/">family tree maker Support</a>
[ link to this | view in chronology ]
Same Laws for Abortion Clinics on Gathering Info?
[ link to this | view in chronology ]
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
[ link to this | view in chronology ]