TOPEKA – Animal welfare advocates applauded a recent decision by the US District Court for the District of Kansas to strike down most of a state law that criminalized undercover investigations of agriculture operations.
The Animal Legal Defense Fund (ALDF), Center for Food Safety, Shy 38 Inc. and Hope Sanctuary were plaintiffs in the case. Kansas Gov. Laura Kelly and Kansas Attorney General Derek Schmidt were named as defendants.
At issue is the Kansas Farm Animal and Field Crop Research Facilities Protect Act enacted in 1990. The act made it a crime to “…damage or destroy an animal facility or an animal or property at an animal facility; exercise control over an animal facility, an animal from an animal facility or animal facility property with the intent to deprive the owner of it; enter an animal facility that is not open to the public to take photographs or recordings; and remain at an animal facility against the owner’s wishes.”
The groups challenged the law in December of 2018 on the grounds that the law violated their First Amendment right to freedom speech and the subsections of the law were overbroad because they prohibited a substantial amount of protected speech.
In response, the state argued that the plaintiffs did not have a First Amendment right “…to engage in false speech made with intent to damage an enterprise conducted at an animal facility,” according to the court document. The state also argued that the First Amendment does not prevent the government “…from imposing reasonable regulations on photographing nonpublic government and private property,” and that subsections of the law “…are viewpoint-neutral, content-neutral and not overbroad.”
Writing the opinion, US District Judge Kathryn Vratil disagreed, ruling that the law placed “…content-based and viewpoint discriminatory restrictions on speech.”
“To determine whether an individual deceived an animal facility owner in violation,” of the law, Vratil wrote, “…defendants would have to review what the individual communicated to the animal facility owner.” In other words, defendants would have to examine the content of speech to determine if the individual had failed to obtain effective consent to enter the animal facility, “remain concealed there,” “acquire or exercise control” over it or take pictures there. “The prohibition on deception…is plainly a content-based restriction on speech.”
Further, the law is viewpoint-discriminatory because the law only prohibits certain acts committed with the intent to damage the business conducted at the facility.
“The law does not prohibit such conduct if the person has the intent to benefit the enterprise conducted at the animal facility, and in this respect, it impermissibly discriminates based on the speaker’s views about animal facilities,” Vrital wrote. “For example, if a journalist ignored posted keep out notices and lied to an animal facility owner to gain access and exercise control over the animal facility with the intent to write a positive article about the enterprise, he or she would not violate…” the law.
“Similarly, an undercover photographer would not violate [the law] if he or she lied to gain access to a Borden Dairy farm to covertly film a tribute to Elsie the cow,” Vrital continued. “In other words, a person cannot violate the law unless he or she has the intent to damage the enterprise conducted at an animal facility. The law plainly targets negative views about animal facilities and therefore discriminates based on viewpoint.”
The ALDF applauded the court’s decision and called it “a victory for the millions of animals raised for meat on factory farms.”