`
`
`
`No. 21-760
`IN THE
`Supreme Court of the United States
`________________
`LAURA KELLY, in her official capacity as Governor of
`Kansas; DEREK SCHMIDT, in his official capacity as
`Attorney General of Kansas,
`Petitioners,
`
`
`
`v.
`ANIMAL LEGAL DEFENSE FUND; CENTER FOR FOOD
`SAFETY; SHY 38, INC.; HOPE SANCTUARY,
`
`
`Respondents.
`________________
`ON PETITION FOR A WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS FOR
`THE TENTH CIRCUIT
`________________
`BRIEF IN OPPOSITION
`________________
`E. Joshua Rosenkranz
`Counsel of Record
`Elizabeth R. Moulton
`ORRICK, HERRINGTON &
`SUTCLIFFE LLP
`51 West 52nd Street
`New York, NY 10019
`(212) 506-5000
`jrosenkranz@orrick.com
`Counsel for Respondents
`(additional counsel listed on inside cover)
`
`Alan K. Chen
`Justin Marceau
`UNIVERSITY OF DENVER
`STURM COLLEGE OF
`LAW
`2255 East Evans Ave.
`Denver, CO 80208
`
`
`
`
`Cristina Stella
`ANIMAL LEGAL DEFENSE
`FUND
`525 East Cotati Ave.
`Cotati, CA 94931
`
`
`Thomas M. Bondy
`Monica Haymond
`Geoffrey C. Shaw
`Sarah H. Sloan
`ORRICK, HERRINGTON &
`SUTCLIFFE LLP
`1152 15th Street, NW
`Washington, DC 20005
`
`
`
`
`i
`
`QUESTION PRESENTED
`Kansas’s “Ag-Gag” law, Kan. Stat. Ann §§ 47-
`1825 et seq., criminalizes accessing an animal facility
`by deception and with “the intent to damage the en-
`terprise conducted at the animal facility.” Under this
`provision, an undercover investigator who enters an
`animal facility with the intent to expose food safety
`and animal welfare violations is guilty of a crime. Any
`person who lies about her identity and enters the
`same facility with the intent to laud its practices is
`not. Nor is a person who obtains access to the facility
`by deception but has no intent one way or the other to
`help or hurt the enterprise, say an undercover re-
`porter who plans to write an article comparing differ-
`ent animal facilities. The Tenth Circuit held in this
`case that the statute thus “places pro-animal facility
`viewpoints above anti-animal facility viewpoints,”
`Pet. App. 27, and is subject to strict scrutiny under
`the First Amendment. Because Kansas made no effort
`to justify its Ag-Gag law under that standard, the
`court held the statute unconstitutional.
`The question presented is:
`Whether the Tenth Circuit correctly held that
`Kan. Stat. Ann. §§ 47-1827(b), (c), and (d) violate the
`First Amendment because they criminalize speech on
`the basis of viewpoint?
`
`
`
`
`ii
`
`CORPORATE DISCLOSURE STATEMENT
`In accordance with United States Supreme Court
`Rule 29.6, Respondents Animal Legal Defense Fund,
`Center for Food Safety, Shy 38, Inc., and Hope Sanc-
`tuary hereby certify that they have no parent corpo-
`rations, and that no publicly-held company owns ten
`percent or more of the stock of any Respondent.
`
`
`
`
`iii
`
`TABLE OF CONTENTS
`
`Page
`QUESTION PRESENTED ........................................ i
`CORPORATE DISCLOSURE STATEMENT .......... ii
`TABLE OF AUTHORITIES .................................... iv
`INTRODUCTION ..................................................... 1
`STATEMENT OF THE CASE .................................. 2
`Undercover investigations at animal
`facilities reveal important matters of
`public concern ................................................ 2
`Kansas enacts its Ag-Gag law to chill speech ... 4
`The district court strikes Kansas’s Ag-Gag
`law under the First Amendment .................. 5
`The Tenth Circuit affirms based on
`viewpoint discrimination .............................. 6
`REASONS FOR DENYING CERTIORARI ............. 7
`I. The Tenth Circuit’s Opinion Does Not
`Conflict With Any Other Circuit
`Precedent. ........................................................... 7
`II. This Case Is An Unsuitable Vehicle And
`Offers No Opportunity To Clarify Alvarez. ..... 17
`III. This Court’s Review Would Be Premature. ..... 19
`IV. The Tenth Circuit’s Decision Is Correct. ......... 21
`CONCLUSION ........................................................ 28
`
`
`
`
`
`iv
`
`TABLE OF AUTHORITIES
`
` Page(s)
`
`Cases
`ALDF v. Reynolds,
`No. 4:19-cv-00124 (S.D. Iowa) ............................. 20
`ALDF v. Reynolds,
`No. 4:21-cv-00231-RP-HCA (S.D. Iowa) .............. 20
`ALDF v. Vaught,
`No. 4:19-cv-00442 (E.D. Ark.) .............................. 20
`ALDF v. Vaught,
`8 F.4th 714 (8th Cir. 2021) .................................. 20
`Animal Legal Defense Fund v. Reynolds,
`8 F.4th 781 (8th Cir. 2021) .......... 14, 15, 16, 17, 22
`Animal Legal Defense Fund v. Wasden,
`878 F.3d 1184
`(9th Cir. 2018) .......... 7, 9, 10, 11, 12, 13, 16, 17, 22
`Citizens United v. Fed. Election Comm’n,
`558 U.S. 310 (2010) .............................................. 22
`Marks v. United States,
`430 U.S. 188 (1977) .............................................. 19
`PETA v. N.C. Farm Bureau,
`No. 20-1776 (4th Cir.) .......................................... 20
`R.A.V. v. City of St. Paul,
`505 U.S. 377 (1992) .............................. 6, 23, 24, 25
`
`
`
`v
`
`Sorrell v. IMS Health Inc.,
`564 U.S. 552 (2011) .............................................. 22
`United States v. Alvarez,
`567 U.S. 709 (2012) .............................. 1, 7, 8, 9, 10
`United States v. Mendoza,
`464 U.S. 154 (1984) .............................................. 21
`Wisconsin v. Mitchell,
`508 U.S. 476 (1993) ........................................ 25, 26
`
`Constitutional Provisions
`U.S. Const. amend. I ....... 2, 5, 8, 17, 18, 20, 21, 22, 26
`
`Statutes
`Ala. Code § 13A-11-153(3) ........................................ 19
`Ariz. Rev. Stat. Ann. § 13-4902 ................................ 23
`Ark. Code Ann. § 16-118-113 .................................... 20
`Idaho Code Ann. § 18-7042 ....................................... 19
`Idaho Code Ann. § 18-7042(1) .....................................8
`Idaho Code Ann. § 18-7042(1)(a) ................................8
`Idaho Code Ann. § 18-7042(1)(c) ........................... 8, 10
`Idaho Code Ann. § 18-7042(1)(d) .............................. 13
`Idaho Code Ann. § 18-7042(4) ................................... 11
`Idaho Code Ann. § 19-5304 ....................................... 11
`
`
`
`vi
`
`Iowa Code Ann. § 717A.3A ................................. 15, 19
`Iowa Code Ann. § 717A.3A(1)(a) ............................... 14
`Iowa Code Ann. § 717A.3A(1)(b) ............................... 14
`Iowa Code Ann. § 717A.3B ....................................... 20
`Iowa Code Ann. § 727.8A .................................... 19, 20
`1990 Kan. Sess. Laws, ch. 192, § 2(e)(1) ....................4
`1990 Kan. Sess. Laws, ch. 192, § 3 .............................4
`2012 Kan. Sess. Laws, ch. 125, § 41 ...........................4
`Kan. Stat. Ann. § 21-5808 ......................................... 26
`Farm Animal and Field Crop and
`Research Facilities Protection Act,
`Kan. Stat. Ann. §§ 47-1825 et seq.
`Kan. Stat. Ann. § 47-1825 .....................................4
`Kan. Stat. Ann. § 47-1826(e)(1) ........................... 22
`Kan. Stat. Ann. § 47-1827 ................................. 5, 6
`Kan. Stat. Ann. § 47-1827(b) ........... 4, 5, 10, 22, 23
`Kan. Stat. Ann. § 47-1827(c) ........... 4, 5, 10, 22, 23
`Kan. Stat. Ann. § 47-1827(c)(1) ........................... 12
`Kan. Stat. Ann. § 47-1827(c)(4) ........................... 23
`Kan. Stat. Ann. § 47-1827(d) ........... 4, 5, 10, 22, 23
`
`
`
`vii
`
`Miss. Code Ann. § 97-17-95 ...................................... 23
`Mont. Code Ann. § 81-30-103(2)(f) ............................ 19
`N.C. Gen. Stat. Ann. § 99A-2(b) ............................... 19
`N.H. Rev. Stat. Ann. § 635:2(III)(b) ......................... 23
`
`Other Authorities
`Alan K. Chen & Justin Marceau,
`Developing a Taxonomy of Lies
`Under the First Amendment, 89 U.
`Colo. L. Rev. 655 (2018) .........................................3
`Nicholas Kristof, The Ugly Secrets
`Behind the Costco Chicken, N.Y.
`Times (Feb. 6, 2021), https://ti-
`nyurl.com/356kvzp5 ...............................................3
`
`
`
`
`
`
`
`INTRODUCTION
`This case involves a straightforward application
`of this Court’s longstanding viewpoint discrimination
`precedents to a Kansas statute that criminalizes
`speech. In its petition for certiorari, Kansas contends
`that the decision implicates a circuit split about the
`constitutionality of so-called “Ag-Gag” laws and the
`meaning of this Court’s decision in United States v.
`Alvarez, 567 U.S. 709 (2012). But the Tenth Circuit’s
`decision does not conflict with the decision of any
`other court of appeals. And this case has little to do
`with Alvarez, because the Tenth Circuit’s analysis
`rests on uncontroversial and well-settled principles
`regarding viewpoint discrimination, not on the First
`Amendment’s protections for false speech as exam-
`ined in Alvarez.
`This Court’s review would be inapt for other rea-
`sons as well. Around a dozen states have enacted—
`and some have amended—a wide array of differing
`Ag-Gag laws in recent years. The lower courts are cur-
`rently wrestling with constitutional challenges to sev-
`eral of these provisions, and the decisions issued to
`date have relied on different legal theories. The Tenth
`Circuit’s decision in this case is so far the only circuit
`opinion to have focused on a state law’s viewpoint dis-
`crimination. It thus presents a poor vehicle for this
`Court’s assessment of any broader range of Ag-Gag
`issues. Review at this stage would also be premature,
`as the litigation in other cases is ongoing and states
`are continuing to consider new legislation and amend
`existing laws.
`
`
`
`2
`
`The Tenth Circuit’s decision in this case is also
`correct. Kansas’s Ag-Gag law plainly regulates
`speech, and not just conduct. And it criminalizes
`speech based on viewpoint: If a speaker lies on a job
`application with the intent to “damage the enter-
`prise”—falsely stating, say, that she does not belong
`to an animal welfare group—she has committed a
`crime. But if another speaker likewise gains access to
`the facility by deception but lacks any such intent—
`say, an industry supporter who wants to produce a
`puff piece about the facility’s practices—she has not.
`That viewpoint discrimination subjects the statute to
`strict scrutiny, a standard that Kansas has not at-
`tempted to satisfy. The Tenth Circuit thus correctly
`concluded that Kansas’s Ag-Gag statute is unconsti-
`tutional.
`The Court should deny certiorari.
`
`STATEMENT OF THE CASE
`
`Undercover investigations at animal facilities
`reveal important matters of public concern
`This case is about speech—specifically speech on
`a matter of public concern accorded the highest order
`of First Amendment protection. Respondent Animal
`Legal Defense Fund (ALDF) commissions undercover
`investigations of factory farms, slaughterhouses, and
`other animal production facilities, publicly dissemi-
`nates information obtained from those investigations,
`and uses this information to support animal welfare
`reform efforts. Pet. App. 88. Respondents Center for
`Food Safety, Shy 38, Inc., and Hope Sanctuary use in-
`formation
`from whistleblowers
`and ALDF
`
`
`
`3
`
`investigations to support their own organizations’
`missions, including public education. Pet. App. 88.
`ALDF’s investigators apply for jobs at animal fa-
`cilities. Pet. App. 9, 89. Those facilities typically ask
`job applicants whether they are affiliated with an an-
`imal rights group. Dist. Ct. Dkt. No. 1, ¶ 78 n.19
`(Compl.). The investigators sent on ALDF’s behalf are
`honest about their qualifications, but deny that they
`are working with an animal rights organization. Pet.
`App. 9, 89. The investigators then perform their job
`functions, but also record video or take photographs
`with hidden cameras that can be operated with no or
`virtually no effort, so the investigators can fulfill their
`facility-assigned tasks. Pet. App. 9, 89-90; CA10
`Appx. II at 28. Respondents use the resulting pictures
`and video for public education and to alert public offi-
`cials to any animal mistreatment, worker safety, or
`food safety issues that come to light. Pet. App. 9-10,
`90-92.
`Such investigations have exposed abuses so se-
`vere as to prompt state and federal officials to issue
`food recalls, pursue civil and criminal charges, and
`seize animals. Alan K. Chen & Justin Marceau, De-
`veloping a Taxonomy of Lies Under the First Amend-
`ment, 89 U. Colo. L. Rev. 655, 695 (2018). They have
`also stirred public outrage yielding new farm animal
`welfare legislation and changes in consumer behav-
`ior. See, e.g., id.; Nicholas Kristof, The Ugly Secrets
`Behind the Costco Chicken, N.Y. Times (Feb. 6, 2021),
`https://tinyurl.com/356kvzp5.
`
`
`
`4
`
`Kansas enacts its Ag-Gag law to chill speech
`In 1990, Kansas enacted the Farm Animal and
`Field Crop and Research Facilities Protection Act,
`Kan. Stat. Ann. §§ 47-1825 et seq. The statute crimi-
`nalizes among other things “enter[ing] an animal fa-
`cility,” including “to take pictures by photograph [or]
`video camera,” without “the effective consent of the
`owner and with the intent to damage the enterprise
`conducted at the animal facility.” Kan. Stat. Ann.
`§ 47-1827(b)-(d). The legislative history leaves no
`doubt that the law was intended to prevent animal-
`rights investigations; when signing the bill, then-Gov-
`ernor Mike Hayden touted the legislation as a direct
`“response to … damage caused by radical elements of
`the animal-rights movement.” Compl. Exh. C; see
`Compl. ¶¶ 65-66.
`As originally written, Kansas’s Ag-Gag law stated
`that it is criminal to gain access to a facility by force
`or threat. 1990 Kan. Sess. Laws, ch. 192, §§ 2(e)(1), 3.
`In 2012, around the time that many other states were
`enacting Ag-Gag laws, Kansas amended the defini-
`tion of “effective consent” to specify that a person
`could also violate the law by gaining consent through
`fraud, deception, or duress. 2012 Kan. Sess. Laws, ch.
`125, § 41. The legislative history of this amendment
`again confirms that Kansas legislators targeted “ani-
`mal rights activists with an anti-agriculture agenda”
`who “lied on job applications” to “take undercover
`video.” Pet. App. 27. It viewed the “amendment [as] a
`tool that can be used against people using fraud to
`gain access to farms.” Id. In particular, “[t]he change
`to exclude ‘fraud, deception, or duress’ from the defi-
`nition of ‘effective consent’ clarifies that the animal
`
`
`
`5
`
`activists concealing their identity or lying on a job ap-
`plication cannot avail themselves [of] the defense that
`they were given permission to work on or enter the
`facility.” CA10 Appx. I at 78.
`
`The district court strikes Kansas’s Ag-Gag law
`under the First Amendment
`Seeking to engage in undercover investigations in
`Kansas, Respondents brought a First Amendment
`challenge against the state’s Ag-Gag law. Compl. On
`summary judgment, the district court struck § 47-
`1827(b)-(d) as unconstitutional.
`The district court first found as a threshold mat-
`ter that Respondents lacked standing to challenge
`subsection (a) of Kansas’s Ag-Gag law, which prohib-
`its destroying or physically damaging an animal facil-
`ity, because Respondents had no intention to engage
`in such conduct. Pet. App. 103. Respondents did have
`standing, however, to challenge subsections (b)-(d) as
`they had “stated a desire to engage in conduct which
`[each subsection] proscribes and face[] a credible
`threat of prosecution under that subsection.” Pet.
`App. 105; see Pet. App. 108-14.
`The district court then held that the Ag-Gag law
`violates the First Amendment because it regulates
`speech, is viewpoint discriminatory, and does not
`meet strict scrutiny. The district court rejected Kan-
`sas’s argument that § 47-1827 regulates only conduct
`and not speech. Pet. App. 122-23. The court explained
`that the statute “plainly regulate[s] speech” in two
`ways. First, it “limits what [Respondents] may or may
`not say” when attempting to gain access to an animal
`
`
`
`6
`
`facility. Pet. App. 122. Second, it prohibits the “crea-
`tion” of speech in the form of pictures and videos. Pet.
`App. 122-23. The court determined that § 47-1827 is
`a content-based and viewpoint-discriminatory re-
`striction on speech, because it “only applies to speech
`that is made with intent to damage the enterprise
`conducted at an animal facility,” Pet. App. 123-24,
`and “plainly targets negative views about animal fa-
`cilities,” Pet. App. 126. Accordingly, the court applied
`strict scrutiny. Because Kansas did “not attempt to
`justify” its Ag-Gag law under strict scrutiny, Pet. App.
`129, the court invalidated it, Pet. App. 130.
`
`The Tenth Circuit affirms based on viewpoint
`discrimination
`The Tenth Circuit affirmed. Pet. App. 6. The court
`of appeals first reiterated that Kansas’s statute regu-
`lates speech, and not just conduct. Pet. App. 24, 26,
`32, 35, 37-38. It noted that this ruling was consistent
`with the opinions of two other circuits that have con-
`sidered the question in the context of other states’ Ag-
`Gag laws. See Pet. App. 26; see also Pet. App. 40 n.17.
`The court of appeals then held that the Ag-Gag
`statute is viewpoint discriminatory because it prohib-
`its only speech made with the intent “to damage the
`enterprise conducted at the animal facility.” Pet. App.
`26, 32, 35. The court explained that even if Kansas
`might be able to prohibit all entry by deception into
`an animal facility, it could not selectively prohibit en-
`try by deception only with an intent to damage the
`facility. Pet. App. 27. As the court put it, quoting
`R.A.V. v. City of St. Paul, 505 U.S. 377, 391 (1992),
`Kansas could not “license one side of a debate to fight
`
`
`
`7
`
`freestyle, while requiring the other to follow Marquis
`of Queensberry rules.” Pet. App. 54. For these rea-
`sons, the court applied strict scrutiny, which Kansas
`again had not attempted to satisfy. Id. On this basis,
`the Tenth Circuit agreed with the district court that
`the Kansas Ag-Gag law is unconstitutional. Pet. App.
`55. Judge Hartz dissented, arguing that the statute
`does not infringe upon protected speech and effects no
`viewpoint discrimination. Pet. App. 57, 69-70.
`
`REASONS FOR DENYING CERTIORARI
`I. The Tenth Circuit’s Opinion Does Not
`Conflict With Any Other Circuit Precedent.
`Kansas urges this Court to grant review to resolve
`a supposed circuit conflict among the Eighth, Ninth,
`and Tenth Circuits. But there is no such conflict be-
`cause the respective state laws that these decisions
`address are very different from one another, and be-
`cause the Tenth Circuit’s decision below turns on
`viewpoint discrimination and the cited Eighth and
`Ninth Circuit decisions do not. The Eighth and Ninth
`Circuits focus instead on this Court’s ruling in United
`States v. Alvarez, 567 U.S. 709 (2012), addressing the
`First Amendment’s protections for false speech, the
`scope of which the Tenth Circuit repeatedly stated
`was unnecessary to resolve in order to determine the
`validity of Kansas’s Ag-Gag law. Certiorari is unwar-
`ranted.
`1. The petition rests on an asserted conflict be-
`tween the Tenth Circuit’s decision in this case and the
`Ninth Circuit’s decision in Animal Legal Defense
`Fund v. Wasden, 878 F.3d 1184 (9th Cir. 2018). The
`
`
`
`8
`
`Ninth Circuit there addressed Idaho’s Ag-Gag law,
`which criminalizes “interference with agricultural
`production.” Idaho Code Ann. § 18-7042(1). As rele-
`vant here, the Idaho crime is defined as knowingly:
`(1) “enter[ing] an agricultural production facility by
`force, threat, misrepresentation or trespass,” or (2)
`“[o]btain[ing] employment with an agricultural pro-
`duction facility by force, threat, or misrepresentation
`with the intent to cause economic or other injury to
`the facility’s operations, livestock, crops, owners, per-
`sonnel, equipment, buildings, premises, business in-
`terests or customers.” Idaho Code Ann. § 18-
`7042(1)(a), (c).
`The Ninth Circuit analyzed both the access provi-
`sion and the employment provision under the Su-
`preme Court’s decision in Alvarez. The Supreme
`Court held there that the federal Stolen Valor Act,
`which made it a crime to falsely claim receipt of cer-
`tain military decorations or medals, violated the First
`Amendment. Alvarez, 567 U.S. at 713-15. Justice
`Kennedy, writing for himself, Chief Justice Roberts,
`and Justices Ginsburg and Sotomayor, authored a
`plurality opinion explaining that the law was a “con-
`tent-based speech regulation” that failed to satisfy
`“exacting scrutiny.” Id. at 715. Justice Breyer, joined
`by Justice Kagan, wrote an opinion concurring in the
`judgment and taking the view that “the statute works
`First Amendment harm” because “the Government
`c[ould] achieve its legitimate objectives in less restric-
`tive ways.” Id. at 730 (Breyer, J., concurring). Justice
`Alito dissented, joined by Justices Scalia and Thomas.
`
`
`
`
`9
`
`The Ninth Circuit understood Alvarez to permit
`regulation of intentionally false speech made “‘for the
`purpose of material gain’ or ‘material advantage,’ or if
`such speech inflicts a ‘legally cognizable harm.’”
`Wasden, 878 F.3d at 1194 (quoting Alvarez, 567 U.S.
`at 723, 719). The court then applied that framework
`to Idaho’s access provision, concluding that its pro-
`scription on entry by misrepresentation was an im-
`permissible restriction on speech. The court reasoned
`that the statute covered much more than false speech
`“with a material benefit to the speaker.” Id. at 1195.
`Rather, the access restriction covered lies that “do not
`inflict any material or legal harm on the deceived
`party.” Id. at 1196. It therefore swept in “innocent be-
`havior” that rendered the “overbreadth of th[e] sub-
`section … staggering.” Id. at 1195. The court also
`concluded that Idaho’s access “provision … regulates
`protected speech while ‘target[ing] falsity and nothing
`more.’” Id. at 1196 (alteration in original) (quoting Al-
`varez, 567 U.S. at 719).
`By contrast, the Ninth Circuit upheld the Idaho
`provision that imposed criminal penalties for obtain-
`ing employment by misrepresentation because the
`court interpreted a false statement in that context to
`be a “lie made for material gain.” Id. at 1201. The
`court noted that “the Supreme Court [in Alvarez] sin-
`gled out offers of employment” as a context in which
`false speech could be permissibly regulated. Id. at
`1202.
`There is no conflict between this case and
`Wasden. To start, obviously, the Tenth Circuit’s opin-
`ion striking Kansas’s access provision is perfectly con-
`sistent with the Ninth Circuit’s decision in Wasden
`
`
`
`10
`
`striking Idaho’s access provision. Kansas does not ad-
`dress this consistency.
`Instead, Kansas maintains that the Tenth Cir-
`cuit’s decision here on Kansas’s access provision con-
`flicts with the Ninth Circuit’s decision upholding
`Idaho’s employment provision. It dwells on the fact
`that both provisions include an intent element. Com-
`pare Kan. Stat. Ann. § 47-1827(b), (c), (d) (with the in-
`tent “to damage the enterprise”), with Idaho Code
`Ann. § 18-7042(1)(c) (“with the intent to cause eco-
`nomic or other injury to the facility’s operations”); see
`Pet. 12-13; see also Utah Amicus Br. 19-21. And it pos-
`its that having one court invalidate an access provi-
`sion with an intent element, and another court uphold
`an employment provision with an intent element, cre-
`ates a “dilemma” for the state about how it should go
`about fixing its Ag-Gag law’s constitutional defect.
`Pet. 13.
`But the intent elements to which Kansas points
`create no conflict because neither the Ninth Circuit’s
`analysis nor its holding turned on that language.
`Wasden upheld the Idaho employment provision be-
`cause it was an employment provision, not because it
`had an intent element. The Ninth Circuit reasoned
`that false statements made to obtain “offers of em-
`ployment” are a “category of speech” that this Court
`in Alvarez “explicitly” “singled out” as permissible to
`regulate because, in the Ninth Circuit’s view, such
`statements “constitute[] … lie[s] made for material
`gain.” Wasden, 878 F.3d at 1201-02 (citing Alvarez,
`567 U.S. at 723). Because the Wasden court read Al-
`varez to permit states to criminalize gaining offers of
`employment by misrepresentation, and because it
`
`
`
`11
`
`understood the Idaho employment provision to do ex-
`actly that, the court concluded that the provision was
`constitutional. The provision’s intent language did
`not drive the analysis.
`In stark contrast, as the Tenth Circuit explained,
`it had no opportunity to rule on whether the Kansas
`Ag-Gag law would be a permissible speech restriction
`if it covered “false speech made to secure a material
`gain, i.e., employment.” Pet. App. 36 n.14. Unlike the
`Idaho Ag-Gag law, the Kansas Ag-Gag law contains
`no separate employment provision. And in any event,
`Kansas “forfeited the argument … by not raising that
`argument in its opening brief.” Id.
`Conversely, and even more importantly, the
`Ninth Circuit did not address the point that the Tenth
`Circuit found dispositive here: whether the intent el-
`ement in Idaho’s employment provision rendered the
`law viewpoint discriminatory. The Ninth Circuit dis-
`cussed the statute’s intent requirement merely in
`passing, noting that the intent element narrowed the
`employment provision by guaranteeing that it pro-
`tects against harms analogous to state-law “breach of
`the covenant of good faith and fair dealing.” Wasden,
`878 F.3d at 1201-02. To the extent that Wasden dis-
`cussed viewpoint discrimination at all, it did so in its
`analysis of a different provision of the Idaho statute,
`a monetary restitution clause, Idaho Code Ann. §§ 18-
`7042(4), 19-5304. The court rejected an argument that
`the restitution clause discriminated against those
`who seek to reveal misconduct at animal facilities, as
`it interpreted Idaho’s law to not cover “reputational
`and publication damages.” Wasden, 878 F.3d at 1202.
`The Tenth Circuit, in contrast, unequivocally read the
`
`
`
`12
`
`Kansas Ag-Gag law’s “intent to damage the enter-
`prise” element to encompass intent to cause harm via
`adverse publicity and reputational injury. Pet. App.
`29-30. As a matter of state law, the Tenth Circuit in
`this key respect thus construed the Kansas Ag-Gag
`law very differently from how the Ninth Circuit con-
`strued the applicable Idaho provisions.
`Kansas also purports to see a conflict between the
`Tenth Circuit’s analysis here and Wasden’s analysis
`of Idaho’s intent-less access provision. Pet. 11-12. But
`the Ninth Circuit struck that provision just as the
`Tenth Circuit did here, eliminating any plausible
`claim of a conflict.
`Kansas argues that the Ninth and Tenth Circuits
`are nevertheless in conflict because the Wasden court
`suggested that an intent element might cure the con-
`stitutional defect in Idaho’s access provision. Pet. 11;
`Wasden, 878 F.3d at 1198. But Kansas again over-
`looks material differences between the Kansas and
`Idaho statutes and between the constitutional doc-
`trines the two courts applied. As discussed, the con-
`stitutional defect Wasden identified was the Idaho
`provision’s broad sweep, not viewpoint discrimina-
`tion. And that analysis was driven by the specific con-
`tours of Idaho’s Ag-Gag law. Idaho’s access provision
`“include[d] property that is generally open to the pub-
`lic.” 878 F.3d at 1195. By contrast, Kansas’s provision
`criminalizing “[e]nter[ing] an animal facility” speci-
`fies that the facility must be “not then open to the
`public.” § 47-1827(c)(1). The Ninth Circuit’s conclu-
`sion that Idaho’s access provision was “overbr[oad]”
`hinged largely on how this lack of a requirement that
`the property be closed to the public risked
`
`
`
`13
`
`“criminaliz[ing] innocent behavior.” Wasden, 878 F.3d
`at 1195. Indeed, the court emphasized that it was “un-
`settled by the sheer breadth” of the Idaho law, as it
`could cover “grocery stores, garden nurseries, restau-
`rants that have an herb garden or grow their own pro-
`duce, llama farms that produce wool for weaving,
`beekeepers, a chicken coop in the backyard, a field
`producing crops for ethanol, and hardware stores.” Id.
`at 1197. And the court explained that its concerns re-
`garding the expansive reach of the Idaho access pro-
`vision were confirmed by the particular contours of
`Idaho’s background trespass law and the specific leg-
`islative history underlying the enactment of Idaho’s
`Ag-Gag law. Id. at 1195-98.
`In short, the Tenth Circuit’s decision in this case
`striking Kansas’s Ag-Gag law does not conflict with
`the Ninth Circuit’s decision in Wasden striking cer-
`tain provisions of Idaho’s Ag-Gag law and upholding
`others. The two decisions address very different state-
`law provisions raising distinct constitutional con-
`cerns. And the Ninth Circuit certainly never sug-
`gested that, in order to be constitutional, a state Ag-
`Gag law must contain an intent requirement that is
`viewpoint discriminatory.1
`
`
`1 The Ninth Circuit in Wasden also struck down the provi-
`sion in Idaho’s Ag-Gag law prohibiting a person from entering
`an agricultural production facility and making an audio or video
`recording. Idaho Code Ann. § 18-7042(1)(d); Wasden, 878 F.3d at
`1203-04. This “Recordings Clause” was “a content-based re-
`striction” that “prohibit[ed] the recording of a defined topic—‘the
`conduct of an agricultural production facility’s operations.’”
`Wasden, 878 F.3d at 1203-04. Kansas does not argue that there
`
`
`
`
`14
`
`2. Kansas also argues that there is “friction” be-
`tween the Tenth Circuit’s decision here and the
`Eighth Circuit’s decision in Animal Legal Defense
`Fund v. Reynolds, 8 F.4th 781 (8th Cir. 2021). Pet. 16.
`Friction, short of an actual conflict, is no basis for re-
`view. That is particularly so where the Eighth Circuit
`decision that Kansas points to upheld one statutory
`provision but also invalidated another. 8 F.4th at 787-
`88.
`In any event, the perceived “friction” is imagi-
`nary. The Eighth Circuit in Reynolds addressed a
`challenge to Iowa’s Ag-Gag law criminalizing “agri-
`cultural production facility fraud.” The provision pro-
`scribed: (a) “Obtain[ing] access to an agricultural
`production
`facility by
`false pretenses,” or
`(b)
`“Mak[ing] a false statement or representation as part
`of an application or agreement to be employed at an
`agricultural production facility,” and the person
`“knows the statement to be false” and makes it “with
`an intent to commit an act not authorized by the
`owner
`of
`the”
`facility.
`Iowa Code Ann.
`§ 717A.3A(1)(a)-(b). The Eighth Circuit upheld the ac-
`cess provision because, applying Alvarez, it under-
`stood the Iowa law to permissibly proscribe false
`speech that, in the court’s view, caused legally cog-
`nizable harm in the form of trespass to private prop-
`erty. Reynolds, 8 F.4th at 786. But the court
`invalidated Iowa’s employment provision because it
`contained no materiality limitation; it encompassed a
`job applicant’s false statements that were wholly
`
`
`is any conflict between Wasden’s analysis of Idaho’s Recordings
`Clause and the Tenth Circuit’s decision here. Pet. 10-13.
`
`
`
`15
`
`immaterial to the ultimate employment decision and
`thus caused no harm. Id. at 787-88.
`There is no friction between the Tenth Circuit’s
`decision in this case and the Eighth Circuit’s decision
`in Reynolds. The Tenth Circuit here struck Kansas’s
`Ag-Gag law because it requires an “intent ‘to damage
`the enterprise conducted at the animal facility,’” and
`that requirement leads the Kansas law to effect im-
`proper viewpoint discrimination. Pet. App. 25. The
`Iowa access provision that the Eighth Circuit upheld
`in Reynolds contains no intent requirement and in-
`stead proscribes obtaining access to an agricultural
`production facility by false pretenses regardless of
`one’s intent. Iowa Code Ann. § 717A.3A. The Tenth
`Circuit thus addressed a materially different state
`law implicating a different legal analysis.
`The Tenth Circuit here expressly distinguished
`the Eighth Circuit’s decision on that basis. The Tenth
`Circuit stated that its decision holding the Kansas Ag-
`Gag law unconstitutional is “not inconsistent” with
`the Eighth Circuit’s decision upholding the Iowa ac-
`cess provision in Reynolds because, in the Tenth Cir-
`cuit’s view, Reynolds did not “consider a statute that
`is viewpoint discriminatory.” Pet. App. 40 n.17. And
`two of the three Reynolds panelists made the same
`point. In a separate concurrence in Reynolds, Judge
`Grasz stated that, “[g]oing forward,” courts would
`need to determine whether Iowa’s access provision is
`“applied to punish speech that … is tied to political or
`ideological messages.” Reynolds, 8 F.4th
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