A verbose 10th Circuit has split with the 8th Circuit over whether lying is constitutionally protected speech. The disputed ground between the Denver-based 10th Circuit and the St. Louis-based 8th Circuit involves their interpretations of so-called “ag-gag” laws in Kansas and Iowa.

In a 2-to-1 opinion, the 10th Circuit on Aug. 19 struck down the Kanas Farm Animal and Field Crop and Research Facilities Protect Act.  On Aug. 10, the Eighth Circuit found Iowa’s Employment Provision unconstitutional but suggested a more narrowly drafted statute making false statements explicitly made to get a job might pass muster.

The 8th Circuit found the existing language too broad because it could penalize false statements unrelated to employment offers. It upheld Iowa’s Access Provision as not violating the Constitution, writing that “intentionally false speech” undertaken for legal purposes may be proscribed without violating the First Amendment’s right to free speech.

In the 10th’s 72-page opinion, Judge Harris Hartz’s dissent drives home the point. “To begin with, I must address and reject, Plaintiffs’ argument( which the majority opinion neither accepts nor rejects) that lying to obtain access to the property is protected speech.”

Hartz notes that plaintiffs rely on the United States v. Alvarez, allowing people to claim they hold military honors falsely. The Supreme Court in Alvarez, said the government, cannot prohibit false statements for just being false.

But there is still plenty of ground for prohibiting harmful false statements, Hartz says. “I agree with the majority opinion in that the Supreme Court majority held that prohibitions of false factual statements that cause legally cognizable harm tend not to offend the Constitution.”

“Plaintiffs contend that an owner of property suffers no legally cognizable harm when someone obtains consent to enter the property by deception,” Hartz continues. “That contention is plainly wrong.”

He says the authority of a property owner to control who can be on the property is “a fundamental and ancient right.” Without permission, the judge said there is legally cognizable harm to the owner. “In other words, entry of land through such misrepresentation violates the legal rights of the landowner,” he adds.

Fraudulently obtained consent to another’s property is not protected by the First Amendment, according to Hartz, who was appointed to the appellate court by President George W. Bush.

Conflicting rulings by Circuit Courts often can only be settled by Supreme Court review.

Judges Carolyn B.McHugh and Michael R. Murphy were in the majority for review of the Kansas statute. President Barack Obama appointed McHugh, and President Bill Clinton named Murphy.

Writing for the majority, McHugh said subsections of the Kansas law regulate speech, not just conduct, because they dictate what individuals must say to gain access to animal agriculture operations.

The 10th Circuit upheld a permanent prohibition against state enforcement of the Kansas statute due to the violation of the First Amendment.

The Animal Legal Defense Fund (ALDF) is the lead Plaintiff for both the Iowa and Kansas challenges.

Here are the elements of the Kansas Act that was struck down by the 10th Circuit:

(a) No person shall, without the effective consent of the owner and with the intent to damage the enterprise conducted at the animal facility, damage or destroy an animal facility or any animal or property in or on an animal facility.