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Kansas Seeks High Court Review of ‘Ag Gag’ Free Speech Dispute

Nov. 24, 2021, 4:15 PM

Kansas wants the U.S. Supreme Court to consider whether parts of its law that prevents animal rights and food safety groups from using deception to enter and investigate agricultural facilities violate the First Amendment.

The high court’s review is warranted because there’s a conflict between appeals courts on whether the First Amendment bans states from criminalizing trespass by deception at animal facilities, the state argues. This case also presents an important question that should be settled by the court, according to the petition docketed Nov. 22.

Animal Legal Defense Fund, the Center for Food Safety, and other groups challenged the state’s so-called “ag gag” law. The U.S. Court of Appeals for the Tenth Circuit ruled in their favor in August after finding certain provisions of the law discriminated on the basis of viewpoint.

The provisions of the law rejected by the Tenth Circuit criminalized recording and trespassing on a facility without consent and with the intent to damage the enterprise.

This ruling conflicts with one from the Ninth Circuit, which held that an intent-to-harm requirement doesn’t discriminate on the basis of viewpoint, and may even be necessary to make a trespass-by-deception law constitutional, the state’s filing says.

The Tenth Circuit’s decision is wrong because Kansas’ law regulates conduct and not speech, the filing says. Even if trespass by deception was a form of speech, false speech isn’t protected when it causes harm, the filing says.

Animal Legal Defense Fund and other groups have challenged similar “ag gag” laws in Iowa, Arkansas, and Idaho. Given the importance of the question, the high court should grant review and clarify that the First Amendment doesn’t protect using deception to trespass on private property, Kansas argues.

The Kansas Attorney General’s Office represents the state.

Matthew Strugar of Los Angeles, Alan K. Chen of Denver, Colo., Public Justice PC, Foley & Mansfield PLLP, and the ALDF represented the animal and food safety groups in the Tenth Circuit.

The case is Kelly v. Animal Legal Def. Fund, U.S., No. 21-760, 11/22/21.

To contact the reporter on this story: Maya Earls in Washington at mearls@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com

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