Kansas "ag gag" law unconstitutional infringement on free speech

A Kansas statute (Kansas Farm Animal and Field Crop and Research Facilities Protection Act, Kan. Stat. §47-1825 to §47-1828) criminalized entry into an agricultural facility "without the effective consent of the owner" if the intent is to "damage the enterprise." Animal Leg. Defense Fund v. Kelly, 2021 WL 3671122 (10th Cir. 2021). The Tenth Circuit struck down three provisions of the act under the first amendment because they were not content or viewpoint neutral and thus subject to strict scrutiny. The three provisions were in §47-1827 and they prohibited exercising control over an animal facility, recording on the property, or trespassing without the effective consent of the owner with the intent to damage the enterprise.


The court cited Judge Posner's opinion in Desnick v. Am. Broadcasting Co., Inc., 44 F.3d 1345 (7th Cir. 1995) approvingly for the proposition that entry to property does not infringe on the right to exclusive possession just because one has motives for the entry that the owner might disapprove of. The entry is consensual even if obtained by fraud. Moreover, the mere failure to speak is not typically regarded as fraud; in the absence of an affirmative statement that misrepresents facts, keeping silent is not fraud and only crosses the line when one has a duty to speak. But housing testers are not trespassing; nor are food critics who do not announce themselves.


A vigorous dissenting opinion by Judge Hartz argued that property law protects interests in privacy and intruding on property for the purpose of revealing true but embarrassing facts should be viewed as within the interests that property law is intended to protect.