UPDATE: August 25, 2021: The U.S. 10th Circuit Court of Appeals upheld the District Court's ruling on this case, saying that Kansas' law prohibiting undercover investigations of factory farms and slaughterhouses by animal rights activists violates the First Amendment right to free speech.
"Even if deception used to obtain consent to enter is unprotected speech due to the entry upon private property, Kansas may not discriminate between speakers based on the unrelated issue of whether they intend to harm or help the enterprise. ...But that is the effect, and stated purpose, of the provisions at issue," the opinion states.
Senior Judge Michael Murphy and Judge Carolyn McHugh authored the opinion, while Judge Harris Hartz dissented.
Earlier this month, the U.S. 8th Circuit Court of Appeals ruled that part of a similar law in Iowa did not violate the First Amendment. The opinion, with which all three judges on the panel concurred, said the state's law making it illegal to gain access to an agricultural facility by false pretenses was constitutional.
"Trespass to private property is a comparable 'legally cognizable harm,' such that knowingly false speech designed to cause that harm should lead to a similar conclusion," the opinion states.
Kansas U.S. District Court Judge Kathryn Vratil overturned most of the state's "ag-gag" law, ruling it violates the First Amendment right to free speech by criminalizing undercover investigations by animal welfare activists at factory farms and slaughterhouses.
In her 39-page opinion filed Jan. 22, Vratil wrote the Kansas law adopted in 1990 discriminates against certain speech based on its content and is therefore unconstitutional. "The law plainly targets negative views about animal facilities and therefore discriminates based on viewpoint," the ruling states.
The plaintiffs — the Animal Legal Defense Fund, the Center for Food Safety, Shy 28, Inc., and Hope Sanctuary — sued in December 2018, claiming the law violated free speech. Named defendants were Kansas Gov. Laura Kelly and Attorney General Derek Schmidt. A spokesman for Schmidt told the Associated Press the decision is being reviewed before the state decides on next steps.
Judge Vratil's decision in this case was somewhat mixed. While she granted the plaintiffs' motion for summary judgment, meaning the unconstitutional parts of the law — the Farm Animal and Field Crop and Research Facilities Protection Act — cannot be legally enforced, some parts will remain. Those sections make it a crime to physically damage animals and facilities, and they lay out the civil penalties for violations.
Animal Legal Defense Fund Executive Director Stephen Wells said in a release the judge's opinion is a victory for the millions of animals raised for meat on factory farms.
"For 30 years, Kansas lawmakers have suppressed whistleblowers from investigating cruel conditions on factory farms with this unconstitutional law," he said.
The Kansas "ag-gag" law was the oldest of all such laws in the U.S. Coalitions formed by the ALDF have had courts overturn similar laws in Idaho, Iowa and Utah. Lawsuits against "ag-gag" laws in Arkansas and North Carolina are still working their way through the courts. According to the ALDF, the only places with "ag-gag" laws still on the books that have not been challenged in court are Montana, North Dakota and Missouri. Every state law that has been legally challenged has been overturned.
It's possible the Kansas federal court decision will set a precedent for this type of law in other states or influence lawmakers to more carefully craft such legislation to avoid complaints of unconstitutionality. Elected officials in the Sunflower State, which is one of the country's major agricultural producers, could also decide to appeal the judge's opinion or amend the existing law to make it less likely to draw further legal challenges.
Should the state decide to stick with the new status quo, Kansas producers could still have recourse in the courts if their farms or animals are harmed, and perpetrators may face civil penalties if convicted. Those remaining sections of the law might be their best line of defense against animal welfare activism — unless the state appeals and a higher court decides to go in a different direction.
It's likely Kansas poultry, pork and beef producers have been watching the progress of this case. Several major producers do a lot of their livestock raising and processing in the state. One of the largest producers is Hormel Foods, which has a precooked bacon plant in Wichita that recently expanded. In 2017, Tyson Foods had planned to build a $300-million poultry processing facility near Tonganoxie, Kansas, but decided to build it in Tennessee instead following local objection to the project. At the time, Tyson said it was still considering sites in Kansas for future plants.