Kansas Federal District Court Drags “Ag-Gag” Law

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Maddie Level

Maddie is a 3L at the University of Kansas School of Law. She received her Bachelor’s degree in English and Linguistics from the University of Kansas. Professionally, Maddie is interested in products liability and cyber security/data privacy. Her hobbies include video games, baking, and musical theater.

The agricultural industry is one of the largest drivers of the Kansas economy, valued at nearly $65.7 billion.[1]  As such, Kansas has a tremendous interest in protecting agribusiness within the state.  However, certain interest groups also have a legitimate interest in advocating for animals and the environment.  In 1990, the Kansas legislature passed the Kansas Farm Animal and Field Crop and Research Facilities Protect Act (“the Act”).[2]  In part, the Act makes it illegal to take photographs or videos in slaughterhouses or large factor farms “with the intent to damage an enterprise conducted at the animal facility.”[3]

In December 2018, four interest groups (the Animal Legal Defense Fund, Center for Food Safety, Shy 38, Inc. and Hope Sanctuary) sued the Governor and Attorney General of Kansas under 42 U.S.C. § 1983.[4]  Specifically, the Plaintiffs argued the Act violated their First Amendment rights.[5]  Defendants countered, arguing the Act prohibits trespass, not speech.[6]  Addressing the fine line between protected speech and conduct, the District Court of Kansas concluded the Act impermissibly restricted free speech.[7]  Importantly, the District Court of Kansas decided the Act was not viewpoint neutral because it only applies to speech made with the intent to damage animal facilities.[8]

The Court noted that if the Animal Legal Defense Fund (“ALDF”) “conducts an undercover investigation in Kansas, it will share its findings” with other animal rights organizations.[9]  As such, it is fair to assume that after such a favorable ruling, the ALDF and similar organizations will be itching to get undercover cameras into factory farms and slaughterhouses across the state.

While the court’s order is a clear win for animal rights organizations, the margins of victory may be smaller than they appear.  New undercover investigatory work targeted at Kansas factory farms faces two main issues.  First, the ruling may ensure factory farms are more selective about who they hire or let into their facilities.  This could, in effect, hamper efforts by animal rights activists to obtain entry to such facilities. Second, the Act may have already caused the damage it was accused of producing.  The Act has been on the books for nearly thirty years, meaning thirty years’ worth of investigative work has already been stifled.  Animal rights organizations will need to reorganize in the wake of this decision but have one less obstacle to face in their mission.

[1].  Kansas Agriculture: Learn About Kansas Agriculture, Kan. Dep’t. Ag., https://agriculture.ks.gov/about-kda/kansas-agriculture (last visited Mar. 2, 2020).

[2]See Kan. Stat. Ann. §§ 47-1825–1828 (West 2018).

[3]  Kan. Stat. Ann. § 47-1827(c) (West 2018).

[4].  See Memorandum and Order, Animal Legal Def. Fund v. Kelly, CV 18-2657-KHV, 2020 WL 362626 (D. Kan. Jan. 22, 2020) (No. 18-2657-KHV), https://ecf.ksd.uscourts.gov/cgi-bin/show_public_doc?2018cv2657-63.

[5].  Id. at 10.

[6].  Id.

[7].  Id. at 32–33.

[8].  Id. at 33.

[9].  Id. at 7.

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