Animal Legal Defense Fund v. Kelly

Amicus brief filed by the Reporters Committee for Freedom of the Press and 18 media organizations

Court: U.S. Court of Appeals for the Tenth Circuit

Date Filed: Aug. 31, 2020

Update: On Aug. 19, 2021, a panel of the U.S. Court of Appeals for the Tenth Circuit affirmed the district court’s ruling that held three subsections of Kansas’s “ag-gag” statute unconstitutional.

Background: In 2018, four animal rights and food safety organizations filed a federal lawsuit against the governor and attorney general of Kansas, arguing that a state law that criminalizes taking photographs and making audio and video recordings at agricultural facilities, among other things, is unconstitutional. The law is similar to other “ag-gag” statutes passed in state legislatures across the country that seek to block efforts by employees, activists, and others to conduct undercover investigations at agricultural sites.

In January, a district court ruled partially in favor of the advocacy groups, holding that three provisions of the Kansas ag-gag law violate the First Amendment because they are content- and viewpoint-discriminatory restrictions on speech that are not narrowly tailored enough to serve a compelling government interest.

The state then appealed to the U.S. Court of Appeals for the Tenth Circuit.

Our Position: The Tenth Circuit should affirm the district court’s judgment and strike down the Kansas ag-gag law as unconstitutional.

• Taking photographs and making video and audio recordings is speech protected by the First Amendment.
• Journalism about animal facilities has a long tradition of sparking public debate and reform.
• The Kansas ag-gag law chills speech critical to newsgathering, as reporters rely on information and documentation from sources to inform the public about agricultural facilities.
• The Kansas ag-gag law is a content-based and viewpoint-based restriction on speech because it criminalizes only speech that is critical of animal facilities, and it fails strict scrutiny.

Attorney Steve Zansberg of Ballard Spahr LLP served as the media coalition’s local counsel on the brief.

Quote: “By criminalizing the taking of photographs and making of recordings, the Act chills the very journalism that has previously led to positive changes in the agricultural industry, including safer workplaces and a healthier food supply.”

Related: In 2019, the Reporters Committee supported a constitutional challenge to Arkansas’s ag-gag law, arguing that it chills reporter-source communications and stifles investigative journalism. On appeal, the Reporters Committee and 23 media organizations urged the U.S. Court of Appeals for the Eighth Circuit to hold that four animal and human rights organizations have standing to challenge the law.

As discussed in a March 2020 blog post, the Reporters Committee has supported multiple challenges to ag-gag laws in states across the country, including recently in Iowa and North Carolina.