A U.S. district court judge in Kansas City, Kan., recently struck down a portion of the Kansas Farm Animal & Field Crop & Research Facilities Protect Act, better known as the Kansas “ag-gag” law, that was enacted by the Kansas Legislature in 1990. The law was the first of its kind, and now the decision lies with the Kansas attorney general and governor’s office on whether the state will appeal the latest decision overturning a 30-year-old statute.
Over the three decades since Kansas enacted the law, 28 states have attempted to pass ag-gag legislation, but only nine have succeeded. Six remain in effect, in Iowa, Missouri, Arkansas, Montana, Kansas, North Dakota and North Carolina. Ag-gag laws in Idaho and Utah and the first one in Iowa have been overturned.
In December 2018, a coalition of advocacy groups represented by Public Justice, led by the Animal Legal Defense Fund and including the Center for Food Safety, Shy 38 Inc. and Hope Sanctuary, joined forces and filed a lawsuit challenging the constitutionality of the ag-gag law in Kansas.
Roger McEowen, Kansas Farm Bureau professor of agricultural law and taxation at the Washburn University School of Law, said the law was originally designed because animal activist groups opposed to animal agriculture and large-scale animal confinement such as these will do anything they can to destroy the industry.
The Kansas federal judge stated, “The prohibition on taking pictures at an animal facility regulates speech for First Amendment purposes.” The court concluded, dismissing arguments that prohibiting taking pictures did not constitute a restriction on speech.
McEowen said the recent judge found that although the Kansas law protects businesses’ property rights in preventing people from gaining illegal access in order to harm a business, the law also prevents access by lying in order to prop up a business, such as a favorable documentary, which does not offer an equal protected speech. Because the provisions of the act at issue restricts content-based speech, its constitutionality is measured under a strict scrutiny standard.
The restriction on speech is not viewpoint neutral, the court concluded: “The law plainly targets negative views about animal facilities and, therefore, discriminates based on viewpoint.”
“I have a tremendous problem with that line of reasoning,” McEowen said in a recent interview on WIBW Radio. He noted that for a law to be on the books for 30 years and suddenly be found unconstitutional, “That’s even more difficult to stomach.”
Any appeal would go to the 10th Circuit based in Denver, Colo., McEowen said. He said the Kansas governor and attorney general’s office must decide how to proceed going forward.
“The truth of these groups is they don’t like animal agriculture,” McEowen said, adding that the Kansas state legislature must also get its mind around how to proceed. “We have to figure out, based on what the court has said: How can these businesses be protected from groups whose main purpose in life is to destroy them?”