Kansas House tries to fix constitutional flaw to shield agriculture from animal-rights activists

House-passed bill adds ban against spy drones, aircraft flying below 500 feet

By TIM CARPENTER
Kansas Reflector

TOPEKA — The Animal Legal Defense Fund filed a lawsuit in 2018 challenging on First Amendment grounds Kansas’ quarter-century-old law thwarting covert investigations into the treatment of animals and workers at feedlots, slaughterhouses and crop production zones.

Ramifications of that legal action continue to vex the animal agriculture industry in Kansas, farm lobbying organizations and rural legislators.

In 2021, the 10th Circuit of the U.S. Court of Appeals agreed with ALDF’s legal claim and a lower federal court’s decision to strike down provisions of Kansas’ “ag-gag” law — the oldest statute in the United States criminalizing undercover videotaping of alleged abuses.

The appellate court concluded Kansas had embarked on a forthright statutory plan to limit the ability of ALDF and like-mined organizations to slip under the radar in search of proof of the industry’s shortcomings. When signed into law by Republican Gov. Mike Hayden in 1990, he said the legislation was a direct response to damage perpetrated by “radical elements of the animal-rights movement.”

That state law selectively criminalized work of activists critical of Kansas agriculture practices. It didn’t mandate charges against a person who gained access to property without permission with the goal of lauding Kansas animal-handling practices. In other words, Hayden and other Kansas lawmakers interested in squelching dissent were guilty of state-sanctioned discrimination based on viewpoint.

“We reject this approach,” the federal Court of Appeals said. “It elevates form over substance and permits Kansas to do just what the First Amendment prohibits: License one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules.”

The U.S. Supreme Court declined in 2022 to review the Court of Appeals’ unraveling of the Farm Animal and Field Crop and Research Facilities Protection Act.

‘Just shouldn’t go’

The courthouse outcome was celebrated by the coalition of special-interest groups led by ALDF as a victory for animal rights and free speech. They also could see a path to placing their people — whistleblowers — as employees at targeted facilities to collect insider information for articles and videos about hog, beef and dairy or poultry operations, processing facilities and other agriculture businesses in Kansas.

“The industry works hard to keep its practices secret, knowing consumers won’t accept the intense confinement and other inhumane treatment of animals,” said Stephen Wells, executive director of the Animal Legal Defense Fund.

The Kansas Livestock Association, with more than 5,000 members involved in dairy, swine and beef production along with other farm enterprises, went to work drafting a rebuttal bill. The objective was to refine the state’s protection against trespassers on farm property or people making fraudulent statements on employment applications to gain access to land and facilities.

Results of that effort, wrapped into House Bill 2816, was approved 99-24 last week by the Kansas House after five minutes of floor debate. KLA’s legal product avoided the sticky mess caused by language about “intent to damage” and “effective consent” that helped to undermine the 1990 statute. The package forwarded to the Kansas Senate also clarified criminal penalties and blocked use of drones and aircraft below 500 feet directly above agriculture businesses.

“There are some places that people just shouldn’t go without permission,” said Rep. Lisa Moser, a Wheaton Republican and rancher. “This is tailored language done specifically to address the 10th Circuit Court of Appeals’ decision.”

Moser noted the bill resolved the free speech issue by applying sanctions to any unauthorized trespasser on agriculture cropland, farm research facility or animal operation whether those people were engaged in covert investigations or innocent behavior.

None of the likely opponents of the bill, such as the ALDF, the Sierra Club of Kansas or Humane Society of the United States, testified during the House Agriculture and Natural Resources Committee hearing March 6.

KLA steps into void

Jackie Garagiola, associate counsel to the Kansas Livestock Association, said the decision of the U.S. Supreme Court not to hear the state’s appeal meant the law had to be revised so “critical protections provided by the act for these facilities remain, but in a manner that does not come into conflict with the First Amendment.”

Under House Bill 2816, Kansas would make it illegal to enter or remain in animal facility or field crop production areas without permission of the owner or to knowingly make false statements on an employment application to gain access to those places. The same standards would apply to agriculture research areas controlled by private, university, federal, state or local government entities.

Garagiola said “effective consent” language in the Kansas law was unconstitutional because it regulated speech as opposed to conduct.

The new bill addressed the federal court’s contention the old Kansas law forbid speech made with the “intent to damage the enterprise conducted at the animal facility.” To clear up constitutional violations, the House-passed bill created the simple prohibition for trespass or use of fraudulent employment applications regardless of intent of the individual.

It would be a class A misdemeanor to enter or remain on these properties without consent and a class B misdemeanor for making bogus statements on job applications to gain access. The penalty for property damage or destruction of an animal or crop facility would be a level 9 nonperson felony for damage ranging from $1,000 to $25,000 and a level 7 nonperson felony for damages of $25,000 or more.

KLA’s approach was endorsed by Kansas Farm Bureau, Kansas Grain & Feed Association, Kansas Agribusiness Retailers Association, Kansas Pork Association and Kansas Dairy Association.

Janet Bailey, CEO of the dairy association, said the fastest growing segment of Kansas agriculture — dairying — needed lawmakers to  close the gap left by the Court of Appeals’ decision. In particular, she said, the dairy industry was keen to secure criminal sanctions against people seeking jobs under false pretenses. The threat of prosecution has been an effective deterrent to undercover inquiries in the United States.

“Labor is a top concern among those in the dairy industry,” Bailey said. “As such, it can make our industry even more vulnerable to those who might seek employment with motives other than working in the care of our animals and production of milk. Their motives are clear in their desire to damage our industry and the livelihoods of the industry.”