On February 5, 2020, we blogged about the Kansas so-called “ag gag” law. The objective of the statute is to discourage undercover scrutiny of agricultural facilities to obtain evidence of cruelty to animals, food safety violations, and other malfeasance and to broadcast that evidence to the public. The Kansas statute accomplishes this by making it a criminal offence to enter onto the property to take photos or recordings or to remain on the property without the owner’s consent. Consent induced by fraud is invalid. The statute also provides a private right of action for damages.
Earlier this year, the District Court held that the Kansas law violated the First Amendment. The state appealed and the result was a lively oral argument before the Tenth Circuit that could well result in a reversal. Judge Hartz and Judge McHugh were most active; the third panel member, Judge Murphy, was silent.
Based on her questions, Judge McHugh was clearly sympathetic to the judgment. She clearly thinks that the purpose of the statute is to silence undercover investigations and that violates the First Amendment. Judge Hartz seemed much more sympathetic to the state. He kept pushing the parties as to why the standard, plain vanilla trespass statute would not ban the conduct in question; as a general rule consent induced by misrepresentation is no consent at all. Plaintiffs’ counsel finally agreed that the general trespass statute could apply to such conduct, which would suggest that the ag gag law is unnecessary.
We expect an opinion in a month or so.
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