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JUDICIAL: Includes constitutional law, First Amendment, ag gag
In Animal Legal Def. Fund v. Kelly, No. 20-3082, 2021 WL 3671122 (10th Cir. 2021), the Tenth Circuit Court of Appeals reviewed a lower court decision finding part of a Kansas state law unconstitutional. Ultimately, the Tenth Circuit affirmed the lower court’s opinion, agreeing that the disputed portion of the Kansas law was unconstitutional and could not be enforced.
The Kansas law at issue, referred to as the Kansas Farm Animal and Field Crop and Research Facilities Protection Act (“Kansas Protection Act”), prohibits a person from making a false statement in order to gain access to or control over an animal facility. Two other subsections of the law also prohibit directly recording in an animal facility, and trespass to an animal facility with “the intent to damage the enterprise.” The plaintiffs argued that each portion of the Kansas Protection Act violated their First Amendment right to free speech. Ultimately, the court agreed, finding that each of the three subsections of the Act were unconstitutional because the “intent to damage the enterprise” element present in all three subsections did not constitute the sort of harm required for false speech to be unprotected under the First Amendment. Typically, in order for false speech to be unprotected, it must cause “legally cognizable harm.”
The court began by analyzing the subsection of the Kansas Protection Act which prohibited making a false statement for the purpose of gaining control of an animal facility. According to the court, the false statements prohibited by the Kansas Protection Act were protected under the First Amendment because the harm the law attempts to address is not caused by making a false statement to gain control of an animal facility, it is caused by releasing information about the animal facility. Therefore, that portion of the Kansas Protection Act was not constitutionally valid. Next, the court considered the subsection that prohibited directly recording in an animal facility with the intent to damage the enterprise. There, the court concluded that Kansas may not ban recordings on private property due to “favor or disfavor of the message.” In essence, the Kansas Protection Act was engaging in viewpoint discrimination by only prohibiting recordings made for the purpose of damaging the enterprise. According to the court, this subsection of the Act was a violation of the First Amendment. Finally, the court considered the subsection of the Kansas Protection Act that banned trespass with the intent to damage the enterprise. It reached the same conclusion, finding that the Act engaged in viewpoint discrimination by only affecting those individuals who trespassed on an animal facility with an intent to damage the enterprise of the facility. Therefore, the court found that the final subsection was also unconstitutional.
After making its finding, the Tenth Circuit upheld an injunction forbidding the Governor and Attorney General of Kansas from enforcing those portions of the Kansas Protection Act that it found unconstitutional.