(Illustration: Nelle Dunlap)
The State Attorney General’s Office has asked the U.S. Supreme Court to hear an appeal of North Carolina’s ag-gag law, twice struck down by lower courts as unconstitutional on First Amendment grounds.
Represented by Attorney General Josh Stein, the state argued that a Supreme Court decision is necessary to clarify the various courts’ legal interpretations, as well as the nation’s patchwork of similar laws. In a half-dozen other states, the courts have also struck down the laws as unconstitutional or greatly limited their scope.
“Resolving this conflict would provide States with needed guidance as they seek to reinforce private property rights consistent with the First Amendment,” court documents read.
In 2015, the state legislature passed the Property Protection Act. It allowed courts to assess civil penalties of $5,000 per day on employees who documented alleged wrongdoing – in video, audio, or written work – from a business’s non-public areas, and then passed that information to anyone besides the employer or law enforcement.
Eight animal welfare and environmental groups, including PETA, the ASPCA and Food & Water Watch sued the state and UNC-Chapel Hill Chancellor Kevin Guskiewicz over the law. (UNC-Chapel Hill was named because it operates research labs using animals.) The NC Farm Bureau is an intervenor in the case.
Both a federal district court judge and the Fourth Circuit Court of Appeals, in a 2-1 decision – found that as an act of newsgathering, the distribution of the undercover material was constitutionally protected, as was the very act of documenting and creating the material.
And since North Carolina’s ag-gag law penalized only the documentation and distribution of negative material, it regulated speech based on the content, which violates the First Amendment, the appellate court ruled.
The Attorney General’s Office asked the Supreme Court to hear their case also to determine whether the First Amendment applies not to news-gathering, but to “double-agent employees.” These workers would allegedly document activity in nonpublic areas of an employer’s property, such as a breakroom, and use it to “breach their duty of loyalty to their employer.”
In 2015, then-Gov. Pat McCrory vetoed the Property Protection Act, arguing that it could prevent whistleblowers at private businesses, such as nursing homes, from revealing their employers’ abusive practices. (State employees already have some whistleblower protections.) Lawmakers overrode the veto.
Legislators contended that the bill’s purpose was to punish employees’ theft of trade secrets. However, the timing of the law raised suspicions that it was merely a pretense to prevent animal rights activists from being hired at farms, slaughterhouses and research labs – and then conducting undercover investigations.
A year before the law passed, Mercy for Animals recorded on video sick and injured turkeys at a Butterball plant in North Carolina being thrown into a pit to be ground up alive. Likewise, in 2011, Mercy for Animals showed video evidence of a Butterball employee stomping live turkeys at a Hoke County plant. The worker later pled guilty to felony animal cruelty charges.
After the Property Protection Act became law, the animal welfare groups sued the State of North Carolina in federal court. They argued that the law had a chilling effect on their investigations. PETA, for example, said it had planned to conduct an undercover probe of UNC-Chapel Hill’s animal research facilities, but “has refrained from doing so out of fear,” according to court documents.
In 2020, the groups prevailed when a federal district court judge struck down the law as unconstitutional because several of its provisions violated the First Amendment.
The State of North Carolina took the case to the Fourth Circuit Court of Appeals. Last February, in a 2-1 decision, the judges upheld the lower court’s ruling.
In a legal filing opposing North Carolina’s request to the Supreme Court, the animal welfare groups counter-argued that “efforts to turn” the Fourth Circuit’s decision “into something warranting this Court’s review are nonsense. Nor have the State, UNC-Chapel or the NC Farm Bureau, which is an intervenor in the case, demonstrated “any tension among the lower courts.”
The groups also argued there are already laws prohibiting trespassing and breaking and entering – “ known as non-expressive conduct.”
The jury in the famous Food Lion case did not penalize the actual documentation of alleged wrongdoing. In that 1996 case, the grocery chain successfully sued ABC in federal after two of its producers misrepresented themselves to get hired at a Greensboro store. Those producers then secretly taped alleged unsafe food handling practices. The jury found ABC liable for fraud, trespass and disloyalty. On appeal, the Fourth Circuit tossed the fraud claim.
