thank you good morning to the court counsel and then please the court my name is brown lao i'm the solicitor general of kansas are doing today on behalf of the state of kansas defendants appellants who are the governor and the attorney general is here challenge the act as an unconstitutional violation of their free speech rights under the st amendment to the united states constitution the district court agree but was wrong for three essential reasons  does not regulate protected speech because entering private property is not speech nd yet does not regulate protected speech because false speech intended to inflict damage is also not protected and rd the act is not improperly content or viewpoint case as to the st reason the kansas statutory protections do not regulate speech because they concern nonstop beach conduct the provisions are all premised on and prescribe entering an animal the so entering private property even when access is premised on a lie is not speech and regulating that entry is effectively a form of trespass the united states supreme court has recognized the st amendment does not create a right to trespass this traditional st amendment principle was not changed by united states against alvarez which was relied on by the district court well it's not a question of whether created it in the st amendment protects you from a trespass action the issue is whether where you're not are in all trespass assure only prohibiting trespass that's based on certain intended speech if you can do that under the st amendment so it's a question whether or not not whether sword to gain access to private property that is traditionally protected by trespass and that's the st element of speech the lie that is told to obtain access a lie specifically referred to by justice kennedy in the plant only open in alvarez and then the nd element of alleged speech is after the lie has been used to commit the trespass the trespass is used as leverage for the additional speech about what is going on in the facility trust act so there are two layers of alleged speech arguments we believe they're both wrong they centrally revolve around the illegal tr that the kansas legislature chose to make a policy decision to and shrine that into the statute and to provide for at least in a couple of circumstances different and more severe criminal  was not that already prohibited by kansas's criminal trespass statue i think that ofan durst could have been charged under the existing statute before the statute i'm just trying to get it straight what the law was you say there was an overlap is there something prohibited in this statute that is not prohibited by the criminal trespass that you know we don't believe so unusual d and kansas law kansas also has a separate criminal trespass statute for trespassing on nuclear generating facilities and the other thing that would be important is it was a policy decision by the legislature to highlight the significance of these facilities and the need for protection and that's certainly within their policy judgment to have to collect but on the nuclear facility does it have anything to do with speech that he doesn't offer free and he's made statements to get on that were false or that you went on with the purpose to later disparage the me why that should be the case well the alvarez requirement and i'll come back in a minute to the offer of employment the alvarez requirement is that there be some material arms were damage and trespass traditionally is the type of tort similate are just nominal damages apply even even if there are no proven damages of the nature of trespass it is one of those property rights in the something which i didn't think was correct in answer to a question from judgement q and ms i want to make sure yours you're saying it used you said that the nuclear and it was stated as the law in a civil context similar to this in a kansas court of appeals decision are you saying that someone would not be guilty effect that's correct the statute doesn't contain the same when language is the farm animal protection act but you're correct that under that common law criminal trespass entry by deceit would still be trespass as to a nuclear generating facility that separate statute provides increased penalties for trespassing in a nuclear generating celing and that's because in general law it's not true everywhere but generally consent is not effective if it was  in through fraud through lying to somebody isn't that correct yes i believe that is correct and it's been stated as the law and yes i believe that would predate the statute is part of the traditional law of trespass when declare for good very good as to the nd reason that we believe the district or i'm wrong we believe these kansas provisions fall into  a well recognized category of unprotected speech or regulating only false speech that is intended to inflict damage this goes to the question that you are asking keep we believe that the distinction is that false accompanied by harm are not subject to the same protection as in cases of defamation for argument solicitation or other causes of action our as criminalized only also to eat and nothing more harms you correct well we don't believe that's entirely correct that is a separate st amendment argument that once the trespass has been committed they should be allowed to engage in st amendment activity using the benefit of the trespass so that is obtain access based on the fraudulent consent based on the trespass and the nd element the photography or the video is not enough itself it protected the st amendment activity i don't have a right jur agriculture industry from public scrutiny by punishing undercover investigators reveal information about animal welfare food safety and labor conditions all matters of profound public concern i'd like to take a the anti deception provisions that make the types of undercover investigations my clients are involved in illegal that is roughly around the same time that several other western states were adopting similar provisions of what we call ag gag was that we believe that the legislative history is cited in our reef of from age forty one to forty three dollars demonstrates that the legislature had in mind animal to animal welfare organizations at the time in an act of both the original of criminal statute and acted in the by the kansas legislature would you agree that anything that your clients would want to do that would violate this law could be prosecuted under the when you say with with there's some jurisdictions that say it's forbidden and that deception doesn't matter some say ken there are gay or jurisdictions that say you can't record a conversation with somebody unless both of you agree and there's some that just require one person to agree so kansas has a recognized property right that you cannot come on my property by obtaining my consent through deception and that seems to distinguish alvarez because that's a legal interest that is   explore that let's explore that say someone comes on the property and then starts filming and the owner says i don't want you doing that you're going to stop in the person says no i have a st amendment right to continue to film this and the popular says well i'm going to call the cops th and the person continues to film and stay there and the cop comes and that and the cops arrest the person could violation of law a criminal trespass is that a and you're saying i have no interest in keeping someone from filming it i mean asking does that mean that someone could continue to film even after i said get out of here i don't like you doing it i just want to take a string of five pathetic is here to see what these so say someone comes on my property and then wanders in the back and starts photographing things that were not open to the public and security guard sees this on a security camera and tells the person to leave same result is that violate this person's first amendment right to arrest him for that him or her  how it holds up under different hypotheticals what if i posted a sign outside say no filming or you promised or you know you cannot come in if you if you come in i promise well say there's a convention and i want everything off the record and the organizer of the convention and say you have to promise that you won't do any filming you won't record anything here while you're here and then you say yes you lie and you come in and you film is that is that a violation of the st amendment if that person is prosecuted for violating for trespassing in that circumstance the again your honor there's a distinction sort of the  property owner in that case the convention operator could file a breach of contract action under generally applicable beach or contract law you might be able to argue for a civil some sort of fraud under general have a law that's not this law this is the law   and you're saying that if this person who entered the convention under false under false promise and recorded stuff that that would be it would be it would violate letters of appreciation to the facility and then post write an article about how great it was i went to be liable under the statute correct would not have have the requisite problem with same and the state has the authority to prohibit somebody who lies to get onto an agricultural property in order to destroy it or to set it on fire or to do physical actual tangible damage but the statutory language here is not limited to physical or a possible future consideration absent the overbred claim i'm sure you're familiar with wisconsin versus mitchell and that said if if you disorderly conduct or something and and if it's with racial animus that's ok it's all right to increase the penalty relating to filming because that's the only language in the statute that would considering that specifically addresses speech go ahead so  provision those are two distinct ways in which the law regulates speech that's protected and covered by the st and then i want to also and so let's set aside the deception and then the only the st amendment flow is limited to the filming the video recording and photography the deception again as we as we argue it is not does not cause the in this context the deception does not cause the kinds of trespass story harms that the courts have to put be recognized as this court held in western watersheds project that case also involved a criminal because the same types of deception to gain access to private property that are used by my clients investigators are also used by undercover journalists by civil rights testers on union sites as pointed out by the united farm workers  brief by keep investigators pursuing false claims act claims even law enforcement officers would technically be engaged in a sting operation could be technically prosecuted under the statute by act by by goes ahead and does something they could be removed from the property and it would be a st amendment problem what that's why i went to that the hypothetical about someone's on my property and taking can't you be prosecuted for lying about that just as you could be prosecuted for not leaving me after i tell you to leave if you are explain what i'm missing there with the property owner's perfectly  targets is the very conduct that is used by undercover investigators to reveal this conduct and to and to publish information of great concern so yes if an employer says you signed this contract and it says you're not by this statute it says they have to have notice and the notice is can be a specific sign or it can be just understood or or is the problem because they're not going to walk up to a slaughter house and say can we come in and we're from the animal legal defense fund we come in and film your your properties and your operations in order to reveal possible illegal or unethical conduct so striking down only the video provision is really sort of a half measure in terms of the ability of this type of investigation to be conducted in the state of kansas and again this applies not it's under the national labor relations act as a civil rights nesting but my point is that it would violate kansas law for an organizer to go into a slaughter house and try to organize its employees and without identifying themselves as a as a union as a member of the the definition of damage to the enterprise both of the those things would be criminal under the statute as it exists so the scope is is are and why not i want i don't i'm not sure i completely answer just be q s question about viewpoint and ways which is the law prohibits false speech and allows truthful speech for that that form of content discrimination is the reason the supreme court had to decide the united states versus oprah's false but not truthful tribulation in addition the state is chosen to only focus on the animal agriculture industry with good reason because the and i agree culture industry is so essential to the kansas economy but that focuses us on the idea that this law that they don't prohibit undercover investigations of nursing homes or of childcare facilities or other other types of facilities that they are less concerned about protecting the reputations of apparently so that makes it s threatening the life of the president but doesn't wise threaten the life of a judge and you distinguish that situation no because the prohibition is the provision on the particular subject matter is animal animal agriculture if you look at the definition of and what an animal facility is i'm under the statute it covers anything from a slaughterhouse to an animal research lab to a university and to an elementary school is conducting and experiment with a live animal i interrupted you while you were responding to the judge because used to do it i was just that's what i was doing just now was was trying to flush out my content of viewpoints from a nation argument so so essentially we have to art to read to arguments the indulgence of the court with all the extra time  be unconstitutional as a matter conjoint untended viewpoint discrimination to say that the legislature is focusing on a certain industry that's a matter of policy judgment policy preference about the legislatures the termination of what is needed and to say that just because one industry has a separate trust and to another doesn't it somehow violates content and viewpoint discrimination aspects of person am an obvious certainly we would say has to be wrong  the next argument would be someone would be in front of this court saying that the the statute regarding our nuclear facilities is wrong because it's sort of content or viewpoint discrimination the issue with content viewpoint is whether in order to enforce the statute you have to focus on arm the content of the speech and or the particular viewpoint vantz by that speech in your nuclear facility the statute has absolutely nothing that would implicate that or mammon hard time falling on our well except that it is a statute directed at a particular industry which i think was the st element of w well speech is harmful no i don't believe so which is the reason that oh my god if they silm what's actually happening and then they publish err it's true it's true well speech i don't think you get to hang your harm or untruthful speech well but the point of the harm either is that the statute provides for the harm just like the false statement by the security salesman subjects him to securities fraud charges ringback a security salesman who gives correct information isn't subject to the st amendment because of the truthfulness of it there is no new day if the truthful information is harmful to the business because it reduces sales right i think we're talking about two different elements of truth and harm i'm speaking about the harm that comes from the center nation of the speech you're speaking about the harm that comes from the videoing  be aspect of the speech here so that's part of the chain i was discussing with the judge judge murphy i'm not understanding you are you are you telling me that you can claim harm even if alvarez and all the cases that say you cannot trust me trespass based that get the right to trespass based on the st amendment there is no basis for notwithstanding the fact that the video they ultimately made wrongfully and consistent with the way in which they obtain access to the property and sets not to standing the fact that it shows what actually happened or occurred they had no right to make the video and they're still subject to prosecution is consistent with the person  finally just a couple of other points that i would like to make i think it's worth noting that this statute does not ban all st amendment activity by groups like the plaintiffs group here it just affects their preferred on their preferred method of st amendment activity but finally i wanted to bring to the court's attention that many of these same issues are pending in the circuit and a case that was argued in september conclusion your honour's agriculture is a vitally important element of the kansas economy and the potential harm from an authorized intrusions like those that issue here is very