Kansas “ag-gag” was oldest in the United States
WASHINGTON D.C.––The U.S. Supreme Court on April 25, 2022 rejected without comment an appeal by the State of Kansas against a January 2020 verdict by the U.S. District Court of Kansas, upheld by the 10th U.S. Circuit Court of Appeals, which in effect erased the oldest so-called “ag-gag” law in the country, adopted in 1990.
“Ag-gag” laws take various forms, but have in common that they seek to prohibit undercover investigations that expose cruel, offensive, and often illegal activities on farms, in slaughterhouses, and in other facilities belonging to animal use industries..
The U.S. Supreme Court left intact the finding by a three-judge appellate panel that the “ag-gag” violated the First Amendment “by stifling speech critical of animal agriculture,” Associated Press explained.
10th Circuit ruled that laws may not discriminate based on intent
The 10th U.S. Circuit Court of Appeals panel ruled 2-to-1 “that even if deception is used to enter private property, Kansas may not discriminate based on whether the person intends to harm or help the enterprise,” Associated Press continued.
“The Kansas law made it a crime for anyone to take a picture or video at an animal facility without the owner’s consent or to enter the facility under false pretenses,” Associated Press said.
The constitutionality of the Kansas law was challenged in December 2018 by a coalition led by the Animal Legal Defense Fund, also including the Center for Food Safety, Hope Sanctuary, and the vegan sanctuary Shy 38, Inc., represented by the First Amendment defense organization Public Justice.
The U.S. District Court of Kansas in January 2020 rejected a State of Kansas motion for summary judgement, and at the same time “granted most of the coalition’s motion for summary judgment, thus barring the state from enforcing the ag-gag law,” an Animal Legal Defense Fund media release summarized at the time.
Court upheld only portions of “ag-gag” addressing actions which were already crimes
“The court’s decision only left intact portions of the law that would criminalize causing physical damage to animals and facilities, and the civil remedy for violations,” the Animal Legal Defense Fund said.
Said Associated Press of the April 25, 2022 U.S. Supreme Court rejection of the State of Kansas appeal, “Federal appeals courts considering similar laws in Iowa and Idaho split over the [constitutionality] issue, raising Kansas’ hope that the high court would step in.”
Both the Iowa and Idaho ag-gag laws, however, have been repeatedly struck down by appellate courts on First Amendment grounds.
“Agricultural facility trespass”
In March 2022, for instance, the U.S. District Court for the Southern District of Iowa for the second time found unconstitutional an attempt by the Iowa state legislature and Iowa governor Kim Reynolds to criminalize undercover investigations at agricultural facilities, including factory farms, slaughterhouses, and commercial dog-breeding kennels, colloquially known as “puppy mills.”
The first Iowa ag-gag law, passed in 2012, was rejected by the U.S. District Court for the Southern District of Iowa in 2019.
The lowa legislature then tried to end-run the verdict by passing a similar law which created a new crime called “agricultural production facility trespass.”
“The law makes trespassing at a food operation an aggravated misdemeanor that carries up to two years in prison and a fine of $8,540. A second offense is a felony that carries up to five years behind bars,” reported David Pitt of Associated Press in August 2021.
“Those are far harsher penalties than trespassing elsewhere, a simple misdemeanor that carries up to 30 days in jail and a fine of $855,” Pitt noted.
Conflicting rulings from same court
The 8th U.S. Circuit Court of Appeals on August 10, 2021 “upheld a portion of the dismissal by U.S. District Court for the Southern District of Iowa” Pitt explained, “and continued to block the provision of the law that criminalized making a false statement in seeking a job at an animal production facility.
“The court, however, reversed the judge on a second provision,” Pitt continued, “and said the state can make it illegal for someone to obtain access to an agricultural production facility by false pretenses.”
The Iowa ag-gag challenge was led by the American Civil Liberties Union, the Animal Legal Defense Fund, Iowa Citizens for Community Improvement, Bailing Out Benji, and the People for the Ethical Treatment of Animals.
The Idaho ag-gag law, adopted in 2014, was struck down by the District Court for Idaho just a year later.
The Ninth U.S. District Appeals in January 2018 upheld the lower court ruling.
Other “ag-gags” challenged
Coalitions including and mostly led by the Animal Legal Defense Fund have also won verdicts striking down “ag-gags” in North Carolina, Utah, and Wyoming.
The U.S. Court of Appeals for the Fourth Circuit is reviewing the decision by the Middle District Court of North Carolina that struck down the North Carolina “ag gag.”
Arguing alongside the coalition of animal advocacy organizations urging that the decision should be upheld are the Reporters Committee for Freedom of the Press and 17 other news media organizations. Joining the coalition of animal advocacy organizations is the American SPCA, seldom if ever before a part of anti-“ag gag” cases.
Challenges to the Arkansas and Missouri “ag-gag” laws are still underway.
“Attempts to pass ag-gag laws have failed in 17 states, including Washington, California, Arizona, New Mexico, Colorado, Nebraska, South Dakota, Minnesota, Illinois, Indiana, Kentucky, Tennessee, Florida, Pennsylvania, New York, Vermont and New Hampshire,” according to Progressive Farmer reporter Todd Neeley.
“Ag-gag” laws “currently remain in effect in Montana, North Dakota, Missouri, Arkansas and Alabama,” Neeley added, and are also in effect in the provinces of Alberta, Manitoba, Ontario, and Prince Edward Island, Canada.
USDA inspection records back online
Also moving in the direction of what the online vegan advocacy periodical Sentient Media called “transparency in food production,” the U.S. Department of Agriculture in January 2022 settled a lawsuit brought by the Animal Welfare Institute and Farm Sanctuary by publishing records pertaining to Humane Methods of Slaughter Act and Poultry Products Inspection Act slaughterhouse visits.
The records, formerly public, were withheld throughout the Donald Trump presidency. The U.S. Secretary of Agriculture throughout that time was George Ervin “Sonny” Perdue III, a former agricultural veterinarian who from 2003 to 2011 was governor of Georgia.