On April 8, 2021, we blogged about the 10th Circuit oral argument in Animal Legal Defense Fund v, Kelly, the first amendment challenge to Kansas’ so-called “ag-gag” law.  Animal rights groups often use deceptive tactics to obtain access to agricultural facilities, where they can document animal abuse and expose it to the public.

Agricultural producers understandably resist these efforts.  In rural states in which they have political power, they have often induced legislatures to ban such tactics.  These laws raise serious questions under the first amendment and there has been litigation in at least six states over the issue.  The circuit courts are not in agreement as to the right answer.

In Kelly, the 10th Circuit voted,2-1, to overturn three parts of the Kansas statute.  All three require the “effective consent of the owner” to avoid liability; to be effective, consent cannot be induced by force, fraud, deception, duress or threat.  All three also require the specific intent to damage the enterprise conducted at the facility.

Subsection (b) forbids the exercise of control over an animal facility, an animal or property thereof.  Subsection (c) forbids entering into an animal facility, remaining concealed therein, or taking pictures via photograph or video recording.  Subsection (d) prohibits entering a facility if the entry is prohibited or remaining in a facility after notice to depart.

The majority opinion starts with the proposition that the first amendment protects the collection of information for publication.  It then explained that, in general, the first amendment prohibits the government from regulating the content of speech – i.e., what it says – or viewpoint discrimination – i.e., why it was said.  It finally drew two conclusions from the Stolen Valor case, United States v. Alvarez.  First, the government must provide some justification for the regulation of false speech.  Second, false speech that causes legally cognizable harm is generally not protected.

The majority held that all three subsections at issue were viewpoint discriminatory, because one essential element of each offense was intent to cause damage to the enterprise.  So, gaining access to a facility or recording events is illegal if the intent is to injure the enterprise, but entirely permissible if the intent is to promote the enterprise.  This kind of viewpoint discrimination requires strict scrutiny, a standard Kansas did not attempt to meet.

The majority held that the kind of damage at issue was too remote to satisfy Alvarez’ legally cognizable harm requirement.  Deception to gain access to animal facilities does not itself cause any damage to the enterprise.  The damage occurs only if the deception leads to the discovery of animal abuse and subsequent publication thereof and the cause of that damage is truthful information.  This holding assumes, of course, that an act of trespass is not itself legally cognizable harm.

The majority rejected three other arguments Kansas made.  First, Kansas argued that there is no first amendment right to trespass.  The majority agreed with that proposition as a general rule but held it had no application here.  Kansas could legally bar entry to all persons who obtain consent by deception, but Kanas only bars those with intent to injure.

The majority also rejected Kansas’ argument that it should follow Judge Bea’s dissent in Animal Legal Defense Fund v. Wasden that trespass constitutes a legally cognizable harm.  All that does is to establish that falsity plus harm means the speech is unprotected, but the majority thought that viewpoint discrimination against unprotected speech required the same strict scrutiny as discrimination against protected speech.

Third, the majority distinguished its prior precedent in Western Watersheds Project on two grounds.  First, entry on private property procured by deception and subsequent recording were was not at issue in that case.  If it were, it would merely establish that the recording was unprotected speech, which would not justify viewpoint discrimination.

The dissent spends a fair amount of spaced tilting at a windmill erected by the plaintiffs but generally not relied on by the majority:  that the deception at issue here is unprotected speech under Alvarez, because trespass is legally cognizable harm.  The true basis for the majority opinion, in our view, is that the statute engaged in viewpoint discrimination.

The dissent does offer a hypothetical that opponents of the ag gag law would probably have some trouble disputing.  Suppose the statute prohibited deception to gain access to an abortion clinic and a pro-life activist lied to gain access to the clinic.  Once inside, he documents the act of abortion and disposition of the fetus, then publishes his recording to the world.  One suspects that most ag gag opponents would want to find a way to prohibit the activist’s exercise of his first amendment rights.

The dissent then addresses the viewpoint discrimination holding.  The dissent argued that viewpoint discrimination is merely a subset of content discrimination.  And content discrimination focuses on the message itself, not the motive behind the message.

The Supreme Court has clearly distinguished between content discrimination and the motivation behind the message. In R.A.V. v. City of St. Paul, the city ordinance banned fighting words, but only when they contained bias-motivated messages – e.g., racial, ethnic, religious, or gender bias.  That clearly did involve content discrimination and a unanimous Supreme Court held it unconstitutional.  By contrast, in Wisconsin v. Mitchell, the statute enhanced punishment for crimes motivated by racial, ethnic, religious, or gender bias.  A unanimous Supreme Court held that statute did not violate the first amendment because it punished only unprotected conduct.

The dissent also argued that cases upholding the Free Access to Clinic Entrances Act (FACES Act) rejected the distinction between content and motive.  The FACRS Act prohibits threats, harassment and intimidation of purchasers and providers of abortion services for the purpose of preventing abortion.  While such conduct is usually carried out by speech, courts have never held that threats or intimidation are protected by the first amendment.  The motive requirement merely limits the statute to conduct that Congress thought was more socially significant.

So too, argues the dissent, is the motive requirement in the ag gag law.  Of course, deceptive speech is an element of the offense, but the essence of the offense is conduct:  obtaining access to property to accomplish the various acts the statute proscribes.  And as long as the deception causes legally cognizable harm, it is not protected speech.

Whatever one thinks of the merits of the Kansas ag gag law as a matter of policy, we find the dissent’s arguments to be considerably more persuasive than the majority’s.  The majority holding simply ignores the distinction between the content of the message and the motive for delivering it.  The statute does not discriminate on the basis of the content of the message.

For us, the key issue is whether a trespass amounts to legally cognizable harm, as used in Alvarez.  The majority is correct that the principal injury to an agricultural facility derives from the publication of truthful information about animal abuse.  But if trespass alone is legally cognizable injury, then access obtained by deception clearly falls outside the first amendment as defined in Alvarez.

Finally, the majority opinion acknowledges that the statute would comply with the first amendment if it prohibited all deception to gain access to an agricultural property, rather than just that motivated by a desire to do harm.  It is not intuitively obvious that a narrower statute infringes the first amendment when a broader one would not.  Congress commonly enacts statutes with motive requirements to filter out conduct that it does not view as especially harmful to avoid federalizing a “slew of random crimes” that might otherwise occur.

Kansas has not yet decided whether to seek Supreme Court review.  If Kansas does so, we think it has an above-average chance of success.  The opinion is plainly contrary to Mitchell and to common sense.  There is a clear circuit conflict between this opinion and opinions of the 8th and 9th circuits.

As we blogged on August 18, 2021, the 8th Circuit upheld part of the Iowa ag gag statute and overturned a second part on easily repairable grounds.  The latter subsection prohibited deception in connection with an employment application if the applicant intends to engage in unauthorized activity.  The 8th Circuit overturned it only on the ground that the statute lacked a materiality requirement.  It said nothing about viewpoint or content discrimination.  The 8th circuit opinion also clearly held that a trespass, standing alone, is legally cognizable harm for purposes of Alvarez.

In 2018, the 9th circuit upheld parts of the Idaho ag gag law.  Animal Legal Defense Fund v. Wasden.  In particular, Wasden upheld a provision that outlawed obtaining employment by deceptive means with the intention of causing economic or other injury to the facility.  The opinion does not discuss Kelly’s content discrimination theory. But the end result is completely incompatible with the10th Circuit’s holding and reasoning.