We have blogged, most recently on January 3, 2020, about the status of so-called “ag-gag” laws. These laws are designed to prevent undercover scrutiny of agricultural operations to uncover cruelty to animals, food safety violations, or other malfeasance. For the most part, courts have struck down these laws as infringing on the First Amendment.
On January 22, 2020, the United States District Court for the District of Kansas struck down most of Kansas’ ag-gag law as violative of the First Amendment. This particular statute has been around since 1990, although there has never been any prosecution under it.
The statute criminalizes four kinds of conduct without the effective consent of the owner and intended to damage an enterprise conducted at an agricultural site:
A. Damage or destroy an animal facility or animal.
B. Exercise control over an animal facility or animal with intent to deprive the owner of it.
C. Enter an animal facility not open to the public to take photographs or recordings.
D. Remain at an animal facility against the owner’s wishes.
Consent induced by fraud, duress, threat or deception is not effective. The statute also provides for a private right of action.
Much of the opinion dealt with the plaintiffs’ standing to challenge the statute, with the Court concluding that they had standing to challenge the second, third and fourth provisions but not the first. On the merits, the Court found that the statute violated the First Amendment. It held that the statute attempted to regulate speech in two ways. First, on its face, the statute purports to regulate what plaintiffs’ members can say. Second, the process of collecting data about agricultural malfeasance for the purpose of exposing it is protected creation of speech.
The Court further found that the statute was both content-based and viewpoint-discriminatory. The opinion holds that the statute is content-based because a court would have to examine what a putative defendant actually said to the facility owner, and it is viewpoint-discriminatory because the existence of a violation depends upon the speaker’s motivation. A speaker whose intent was to benefit the owner of the facility would, not be in violation.
Because the statute restricts speech based on content, the Court held that strict scrutiny applies. The State made no effort to argue that the statute satisfied that stringent standard, and the Court held that it could not. The Court did not believe that protection of the privacy and property rights of animal facility owners was a compelling state interest. Even if it were, the Court found that the statute was underinclusive in that it only protected those interests from persons wishing to do damage to the facility.