Another Federal Appeals Court Finds Animal Facilities Access Law Unconstitutional

The case is Animal Legal Defense Fund v. Kelly, 2021 WL 3671122 (10th Cir. 2021).

On August 19, 2021, the United States Court of Appeals for the Tenth Circuit affirmed that three subsections of the Kansas Farm Animal and Field Crop and Research Facilities Protection Act (the Act) were unconstitutional. The Act provides criminal sanctions for using fraud or deception to obtain consent to engage in various activities at an animal facility with the intent to damage the facility.

Background

The Animal Legal Defense Fund (ALDF) and two other non-profit organizations brought this lawsuit against the state of Kansas claiming that the Act violated their First Amendment right to free speech. The relevant sections of the Act provide:

(b) No person shall, without the effective consent of the owner, acquire or otherwise exercise control over an animal facility, an animal from an animal facility or other property from an animal facility, with the intent to deprive the owner of such facility, animal or property and to damage the enterprise conducted at the animal facility.

(c) No person shall, without the effective consent of the owner and with the intent to damage the enterprise conducted at the animal facility:

(1) [e]nter an animal facility, not then open to the public, with intent to commit an act prohibited by this section;

(2) remain concealed, with intent to commit an act prohibited by this section, in an animal facility;

(3) enter an animal facility and commit or attempt to commit an act prohibited by this section; or

(4) enter an animal facility to take pictures by photograph, video camera or by any other means.

(d)(1) No person shall, without the effective consent of the owner and with the intent to damage the enterprise conducted at the animal facility, enter or remain on an animal facility if the person:

(A) [h]ad notice that the entry was forbidden; or

(B) received notice to depart but failed to do so.

Kan. Stat. Ann. § 47-1827(b)-(d). “Effective consent” cannot be obtained through the use of fraud or deception. Id. § 47-1826(e)(1). ALDF explained in its lawsuit that it intends to conduct undercover investigations at animal facilities. To obtain employment, these investigators will lie about their connection to animal rights organizations if asked about that connection direction. The employees plan to record activities within an animal facility and use the recordings to expose alleged misconduct within the facility and cause pecuniary harm to the animal facilities. ALDF alleged that the Kansas law prevented it from conducting these investigations.

The District of Kansas found that the plaintiffs had standing to challenge subsections (b), (c), and (d) of the Act. On the merits, the district court held that all three of those subsections violated the First Amendment because the Act regulated protected speech in a discriminatory matter. Additionally, the district court found that the law did not pass strict scrutiny review because it was not narrowly tailored. Following the district court’s ruling, ALDF moved for a permanent injunction, which the court also granted. On appeal, the Tenth Circuit affirmed.

First Amendment Regulation of Conduct or Speech

Under the First Amendment, the government cannot restrict speech because of its message. However, the First Amendment does not prohibit the government from promulgating laws which regulate conduct. On appeal, Kansas argued that the Act did not prohibit speech but rather the conduct of trespass.

When determining whether a law targets speech or conduct, “the question is not whether trespassing is protected conduct, but whether the act [conducted on the property]…qualifies as protected speech.” W. Watersheds Project v. Michael, 869 F.3d 1189, 1194 (10th Cir. 2017). Trespass laws do not discriminate based on the trespasser’s motive for trespassing. Here, the Kansas law prohibited gaining control, recordings, or access to an animal facility without “effective consent.” The Act only operates when someone makes a false statement to obtain consent to gain control of property. Thus, court ruled that the Act regulated not only the actions of undercover investigators, but also their speech.

Content and Viewpoint Neutral

The court went onto explain that even unprotected speech may not “be made the vehicle for content discrimination unrelated to its distinctively proscribable content. In other words, the government cannot ban even deceptive speech because it disagrees with the speaker’s viewpoint. R.A.V. v. City of St. Paul, 505 U.S. 377, 391 (1992). Here, the Act prohibits speech made with the intent “to damage the enterprise conducted at the animal facility.” The court found that the intent of this law was to prohibit specific anti-agriculture viewpoints. For example, the Act does not prohibit lying to gain access to a facility for positive or neutral reasons, but only imposes punishment for false speech made “with the intent to damage the enterprise.” Because the Act does not apply neutrally to all deception, the court held that it is unconstitutionally viewpoint discriminatory.

False Speech

Several types of speech such as obscenity, defamation, and fraud are not protected by the First Amendment. False speech, on the other hand, can receive limited protection under the First Amendment as long as it does not cause a legally cognizable harm. United States v. Alvarez, 567 U.S. 709, 719 (2012).

To constitute a legally cognizable harm, speech must imminently and directly cause an injury. The court found that the Act does not focus on legally cognizable harms such as trespass, defamation, or fraud. Instead, the Act seeks to prevent damages stemming from the potential undercover investigations instead of the false speech itself. Additionally, the court found that because the harm from negative publicity or lost business would result from the dissemination of true information, it did not constitute an injurious act.

Because the law did not protect against a legally cognizable harm, the court held that it was subject to a strict scrutiny review. This requires the law to be narrowly tailored to further a compelling government interest. The court concluded that the record did not show that the Act met this standard. Therefore, the court affirmed the lower court’s order that subsections (b), (c), and (d) of the Act violated the First Amendment. The court also upheld the district court’s injunction.  

Dissent

Judge Hartz dissented from the majority, arguing that a property owner suffers a legally cognizable harm if someone obtains permission to enter the property through deception. One of the principal interests of trespass laws is to protect a right to privacy. Even if the information the investigators collect is true, the use of deception to access animal facilities constitutes a legally cognizable harm because of the invasion of privacy. The dissent explained, “lying to obtain consent to enter another’s property is not protected speech. It can properly be prohibited to protect a property owner’s rights of property, including the right to privacy. Limiting the prohibition to those who intend to harm the property owner does not offend the First Amendment any more than limiting the prohibition on threats to those that are intended to frighten.” Finally, the dissent asked, “If Plaintiffs’ analysis is correct, must we also invalidate statutes that prohibit recording conversations of another person without that person’s consent (even though such recordings could be quite important in an undercover investigation)?”

Conclusion

This is the third opinion recently issued by a federal appellate court to address a state law prohibiting unauthorized access to an animal facility. On August 9, the United States Court of Appeals for the Eighth Circuit revived a challenge to an Arkansas law that creates a civil cause of action against a person who knowingly gains access to a nonpublic area of a commercial property” to engage in “an act that exceeds the person’s authority.” Ark. Code Ann. § 16-118-113. Read more about this decision here.

Then, on August 10, a different three-judge panel for the Eighth Circuit considered the constitutionality of Iowa’s 2012 “Agricultural Production Facility Fraud” law. In that case, the court found that the portion of the law prohibiting false statements to obtain employment at an animal production facility violated the First Amendment. The Eighth Circuit, however, ruled that a provision of the law preventing access to an agricultural facility through false pretenses did not violate the First Amendment. The court stated, “False statements have not received constitutional protection when they involve defamation, fraud, or some other legally cognizable harm associated with a false statement, such as an invasion of privacy or the costs of vexatious litigation.”  The Eighth Circuit ruled that the law constitutionally prohibited false statements leading to the legally cognizable harm of trespass.