Animal Legal Defense Fund Tells SCOTUS Kan. Ag-Gag Law Should be Tossed

Animal Legal Defense Fund (ALDF), an animal law advocacy organization, argued in its brief to the Supreme Court that the Tenth Circuit Court of Appeals was correct in finding that a Kansas law that criminalizes undercover investigation of animal facilities for health and animal welfare violations was unconstitutional.

ALDF’s brief explains that the organization “commissions undercover investigations of factory farms, slaughterhouses, and other animal production facilities, publicly disseminates information obtained from those investigations, and uses this information to support animal welfare reform efforts.” They say that the investigators they hire are honest about their qualifications, and perform their job, but do not admit to working for an animal rights organization and record video while working.

The measure, enacted in 1990 and known as an “Ag-Gag” law, was struck down by the appellate court because it privileges speech that favors animal facilities protected by the bill, while specifically punishing speech against it, per ALDF’s summation. Because of this, the lower court held, the strict scrutiny standard applies, and the statute did not pass muster under that scrutiny.

Kansas applied for a writ of certiorari to the Supreme Court. According to ALDF’s brief, Kansas argued that the case implicates a circuit split on Ag-Gag laws present in about a dozen other states, based on case law concerning protections for false speech. The respondents disagreed, arguing that the Tenth Circuit’s decision rested on viewpoint discrimination grounds, an area of law that does not give rise to a circuit split.

They also argued that the Supreme Court should not hear the case because it is premature for a broad ruling on Ag-Gag laws, as the state laws differ and are in differing stages of legal challenge.

ALDF is represented by Orrick, Herrington & Sutcliffe.