A.G. Derek Schmidt asks U.S. Supreme Court to take up challenge to Kansas ‘ag-gag’ law

Andrew Bahl
Topeka Capital-Journal
Attorney General Derek Schmidt filed a formal request Wednesday asking the U.S. Supreme Court to reverse a lower court ruling that struck a Kansas law restricting recordings at industrial farming sites.

Attorney General Derek Schmidt filed a formal request Wednesday asking the U.S. Supreme Court to reverse a lower court ruling that struck down a Kansas law restricting recordings at industrial farming sites.

Passed in 1990, the so-called ag-gag law law is believed to be the first of its kind in the nation. It makes it a crime to record pictures or video at an industrial farming operation without the owners' consent or if a person enters the premises under false pretenses and intends to damage the businesses' reputation.

The law is intended to deter activist efforts to document conditions at those facilities, such as work by the Animal Legal Defense Fund, which filed suit over the matter in 2018. The 10th U.S. Circuit Court of Appeals upheld a district court ruling in August striking down the law for violating the First Amendment.

In its ruling, the appellate court argued the harm to businesses came from the exposure of their activities, not from the actions of activists and that the state couldn't judge speech based on whether it harms a business or not. 

 "(The law) punishes entry with the intent to tell the truth on a matter of public concern," the justices wrote in their opinion. "Absent a compelling governmental interest and showing of narrow tailoring — which Kansas has not attempted to provide — the challenged subsections of the Act cannot stand."

Kansas' so-called ag-gag law law makes it a crime to record pictures or video at an industrial farming operation without the owners' consent and intends to damage the businesses' reputation. It was struck down in August by a federal appeals court, but Attorney General Derek Schmidt wants the U.S. Supreme Court to reverse the decision.

Schmidt's office has maintained that the law governs conduct, not speech, and should be upheld as allowable. He pointes to a decision from the 8th Circuit Court of Appeals, which upheld a similar law in Iowa earlier this year.

“Kansas enacted this law to add an additional layer of protection regarding unauthorized access to agricultural facilities, and to help improve security measures against those who seek to disrupt the food supply,” Schmidt said in a statement Wednesday. “Animal agriculture is vitally important to our state's economic well-being. We are hopeful that the U.S. Supreme Court will recognize the need to provide clarity on this subject and afford Kansas agriculture producers protections available in our sister states.”

One justice, Harris Hartz, endorsed Schmidt's argument, disagreeing with his two colleagues in a dissenting opinion that said the law should stand.

"It is not at all apparent to me how the Act’s requirement that the liar seek entry on the premises with the intent of injuring the facility drives any idea or viewpoint from the marketplace of ideas," Hartz wrote in his dissent.

Over a half-dozen states have ag-gag laws and most all of them have been challenged in court. North Carolina saw its law struck down last year by a federal judge, although the matter is pending appeal. Similar measures in Utah and Idaho have also been vacated and a federal court ruled earlier this year that a challenge of Arkansas' law can proceed.

Andrew Bahl is a senior statehouse reporter for the Topeka Capital-Journal. He can be reached at abahl@gannett.com or by phone at 443-979-6100.