Animal Legal Def. Fund v. Kelly

434 F.Supp.3d 974

ANIMAL LEGAL DEFENSE FUND, Center for Food Safety, Shy 38, Inc. and Hope Sanctuary, Plaintiffs,

v.Laura KELLY and Derek Schmidt, Defendants.

CIVIL ACTION No. 18-2657-KHV

United States District Court, D. Kansas.

Signed January 22, 2020

Alan K. Chen, Pro Hac Vice, Justin Marceau, Pro Hac Vice, University of Denver Sturm College of Law, Denver, CO, Amanda Howell, Pro Hac Vice, Kelsey R. Eberly, Pro Hac Vice, Matthew G. Liebman, Pro Hac Vice, Animal Legal Defense Fund, Cotati, CA, David S. Muraskin, Pro Hac Vice, Public Justice, P.C., Washington, DC, George A. Kimbrell, Pro Hac Vice, Center for Food Safety, Portland, OR, Matthew Strugar, Pro Hac Vice, Law Office of Matthew Strugar, Los Angeles, CA, Michael D. Moss, Foley & Mansfield, PLLP, Overland Park, KS, for Plaintiffs.

Arthur S. Chalmers, Dennis D. Depew, Office of Attorney General, Topeka, KS, for Defendants.

MEMORANDUM AND ORDER

KATHRYN H. VRATIL, United States District Judge

Animal Legal Defense Fund ("ALDF"), Center for Food Safety ("CFS"), Shy 38, Inc. and Hope Sanctuary are interest groups aimed at protecting and advocating for animals and the environment. On December 4, 2018, they filed suit under 42 U.S.C. § 1983 against the Governor and Attorney General of Kansas in their official capacities. Plaintiffs seek a declaratory judgment that the Kansas Farm Animal and Field Crop and Research Facilities Protect Act, K.S.A. §§ 47-1825 et seq., is unconstitutional. This matter is before the Court on cross-motions for summary judgment: Defendants' Motion For Summary Judgment (Doc. #46) filed July 25, 2019 and Plaintiffs' Motion For Summary Judgment (Doc. #53) filed September 16, 2019. For reasons stated below, the Court sustains each motion in part.

Factual Background

The following facts are uncontroverted or, where disputed, the positions of the parties are noted.¹

I. K.S.A. §§ 47-1825 through 47-1828

In 1990, Kansas enacted the Kansas Farm Animal and Field Crop and Research Facilities Protect Act, K.S.A. §§ 47-1825 et seq. Broadly speaking, in relevant part, the Act makes it a crime to commit the following acts without the effective consent of the owner and with the intent to damage an enterprise conducted at the animal facility: (1) damage or destroy an animal facility or an animal or property at an animal facility; (2) exercise control over an animal facility, an animal from an animal facility or animal facility property with the intent to deprive the owner of it; (3) enter an animal facility that is not open to the public to take photographs or recordings; and (4) remain at an animal facility against the owner's wishes. K.S.A. § 47-1827(a) - (d).² In addition, K.S.A. § 47-1828 provides a private right of action for "[a]ny person who has been damaged by reason of a violation of K.S.A. § 47-1827 against the person who caused the damage."³

As initially enacted, the Act provided that consent was not effective if induced by force or threat. In 2012, Kansas amended the definition of "effective consent" to provide that consent is also ineffective if "[i]nduced by force, fraud, deception, duress or threat." K.S.A. § 47-1826(e).

II. Undercover Investigations

ALDF is a national non-profit animal protection organization that uses education, public outreach, investigations, legislation and litigation to carry out its work on behalf of animals, including those raised for food and subject to laboratory experiments. To expose potential mistreatment of animals and other wrongdoing, ALDF engages in undercover investigations of animal facilities throughout the country. ADLF's co-plaintiffs – CFS, Hope Sanctuary and Shy 38 – are non-profit animal rights and food safety groups. CFS is a national environmental and consumer advocacy non-profit organization; Hope Sanctuary is a farm animal rescue non-profit organization; and Shy 38 is a non-profit farm animal rescue home. They do not conduct undercover investigations but rely upon information from whistleblowers and ALDF undercover investigations.⁴

ALDF has conducted undercover investigations of animal facilities in states other than Kansas. Such investigations typically proceed as follows: ALDF retains an investigator to gain access to an animal facility by obtaining employment there. The investigator does not misrepresent his or her qualifications, but conceals his or her affiliation with ALDF and, if asked, directly denies that an animal rights organization sent him or her to apply for a job.

While performing his or her job functions, the investigator wears a hidden camera. Because agricultural facilities commonly post notices that forbid nonconsensual access, photography or video recording, the investigator is usually on notice that the facility owner forbids such investigative activities.

At times, the investigator may exercise control over animals or parts of a facility by taking a managerial position, exercising supervisory authority or temporarily closing off part of a facility to avoid detection while photographing or recording the conditions.

The investigator does not exercise or intend to exercise actual, ongoing physical control over an entire animal facility.

During an investigation, if an investigator discovers suffering or mistreatment of animals, the investigator hopes to persuade public officials to remove the animals from the owner and send them to a sanctuary or seize them as evidence for a criminal investigation. The investigator will not remove animals or property, but ALDF's disclosure "could lead public officials to seize animals during a pending criminal investigation, or remove them to a sanctuary in order to protect their welfare – consequences ALDF fully intends, if the situation warrants." Plaintiffs' Memorandum In Opposition To Summary Judgment (Doc. #55) filed September 16, 2019 at 14. Neither ALDF nor its investigators intend to cause physical or tangible damage to any animal facility, animal or animal research facility.

Although an investigator may take minor steps to hide his or her investigative activities, such as standing behind a wall to covertly film a suffering animal, an investigator does not intend to physically conceal himself after an agricultural facility is closed for business. An investigator does not physically conceal himself to cause actual physical damage and does not remain at an animal facility if an owner specifically directs him to leave.

After an investigation, ALDF publicizes the results and circulates video footage to media and ALDF audiences. ALDF may then urge criminal prosecution, submit regulatory complaints and file civil lawsuits.

In investigating animal facilities, ALDF's specific goal is to expose animal cruelty, unsafe working conditions, food safety violations and other misconduct, in hope that such exposure will inspire reform. ALDF intends for the animal facilities which it investigates to experience negative consequences and resulting economic harm, including boycotts, lost business, plant closure or other economic harm. That said, ALDF does everything in its power to ensure that investigators follow all applicable protocols and rules, and that they cause no physical or tangible damage to any animal facility, animal or research facility, as defined in the Act. ALDF only intends the economic consequences which flow from public and government scrutiny of the conditions and practices that it documents.

ALDF wishes to conduct an undercover investigation in Kansas but has refrained from doing so out of fear of criminal prosecution under the Act. If the Court finds that the Act is unconstitutional, ALDF will commence an undercover investigation in Kansas.

Defendants have never prosecuted plaintiffs, or threatened plaintiffs with prosecution, under the Act. Indeed, the parties are not aware that the State of Kansas has ever prosecuted anyone under the Act.

III. Use Of ALDF Undercover Investigations By CFS, Shy 38 And Hope Sanctuary

If ALDF conducts an undercover investigation in Kansas, it will share its findings with CFS, Shy 38, Hope Sanctuary and other peer organizations. CFS, Shy 38 and Hope Sanctuary rely on ALDF to conduct undercover investigations and do not intend to conduct their own undercover investigations, or to engage in conduct which could potentially violate the Act. Their interest in this lawsuit is in information which ALDF may provide them, i.e. photos and videos, to further their advocacy efforts. They believe that they cannot accomplish their missions without an ALDF undercover investigation in Kansas. See supra, note 4.

IV. Expense Of Fighting The Act And Similar Laws

ALDF and CFS assert that they have incurred significant organizational expenses combatting the Act and similar laws in other states. Shy 38 and Hope Sanctuary do not allege that they have expended resources because of the Act.

V. Procedural Background

On December 4, 2018, plaintiffs filed a complaint alleging that the Act is unconstitutional. Complaint (Doc. #1). Specifically, in Count 1, plaintiffs allege that the Act violates their First Amendment right to freedom of speech, both on its face and as applied to plaintiffs, because it imposes a viewpoint-based and content-based restriction on their ability to engage in speech and speech-producing conduct on a matter of public concern, and defendants cannot meet their burden of justifying this speech restriction under either strict or intermediate scrutiny. Pretrial Order (Doc. #49) filed July 31, 2019 at 15. In Count 2, plaintiffs allege that the Act violates their First Amendment right to freedom of speech because it is unconstitutionally overbroad in that while it restricts some forms of conduct that are not protected speech, its reach also extends to a substantial amount of constitutionally protected speech. Id.

In response, defendants assert that plaintiffs lack standing to prosecute some or all of their claims. Specifically, defendants assert as follows: (1) as to K.S.A. § 47-1827(a) and (b), plaintiffs cannot show injury...