North Carolina “ag-gag” law fails in U.S. Court of Appeals

Two of three judges find that the North Carolina Property Protection Act violates the First Amendment 

RICHMOND, Virginia––A three-judge panel from the U.S. Court of Appeals for the Fourth Circuit on February 23,  2023 struck down the portions of the North Carolina ag-gag law most applicable to undercover investigations by animal advocates.

The highly technical 2-1 verdict left intact applications of the 2015 law to people who take jobs inside businesses to steal trade secrets,  and/or for other reasons not directly associated with gathering and publishing information about matters of public concern.

Two of the three appellate judges found that the North Carolina law violated the First Amendment right to freedom of speech and media,  specifically by inhibiting news-gathering on a broad range of topics going far beyond cruelty to animals in factory farming.

Verdict comes 16 months after court heard the case

The majority opinion,  written by senior judge Henry F. Floyd,  included discussion of other issues often requiring undercover investigation to expose and legally remedy,  including violations of occupational safety and child labor laws and unsanitary conditions in food processing.

Judge Albert Diaz concurred with Floyd;  Judge Allison Jones Rushing authored a dissenting opinion,  leaving opportunity for the appellate panel ruling to be appealed to a full Fourth Circuit bench,  or to be appealed to the U.S. Supreme Court.

The ruling came 16 months after the panel heard arguments in the case on October 27, 2021,  on appeal from the United States District Court for the Middle District of North Carolina.

Case summary

Opened Judge Floyd,  “Seeking to follow in the well-trodden footsteps of Upton Sinclair,”  author of the 1906 slaughter industry exposé The Jungle,  “People for the Ethical Treatment of Animals wishes to conduct undercover animal-cruelty investigations and publicize what they uncover.  But it faces a formidable obstacle: North Carolina’s Property Protection Act, passed to punish ‘[a]ny person who intentionally gains access to the nonpublic areas of another’s premises and engages in an act that exceeds the person’s authority to enter.’

“Some provisions [of the Property Protection Act],”  Floyd summarized,  “cover wide swaths of activities,  such as ‘substantially interfer[ing] with the ownership or possession of real property.’

“Duty of loyalty”

“Others appear more narrowly focused, prohibiting capturing, removing, or photographing employer data—but only when the employee uses the data ‘to breach the person’s duty of loyalty to the employer.’

Continued Judge Floyd,  “PETA contends the Act is nothing more than a discriminatory speech restriction dressed up in property-protection garb.  It urges us to put aside any legitimate protections the Act may offer [to business owners] and concentrate on what it believes the North Carolina General Assembly really meant to accomplish:  end all undercover and whistleblowing investigations.”

Conversely,  Judge Floyd wrote,  “North Carolina casts the Act as generally applicable.  Any incidental restrictions on speech, it counters,  come only as unavoidable side effects of the Act’s strong remedies against trespass and disloyalty.

First Amendment favors free speech

“The First Amendment,”  Judge Floyd noted,  “gives the benefit of any doubt to protecting rather than stifling speech,”  citing the 2010 U.S. Supreme Court decision in Citizens United v. Federal Election Commission that opened the door to unlimited corporate spending on broadcast advertisements during election campaigns

“But we decide no more than we must,”  Judge Floyd explained.  “We enjoin the [Property Protection] Act insofar as it applies to bar protected news-gathering activities PETA wishes to conduct.  But we leave for another day all other applications of the Act.

“PETA seeks to conduct undercover investigations,”  Judge Floyd wrote.  “It wishes to speak to employees,  record documents found in nonpublic (but not necessarily private) areas,  and carry out surveillance.  The Act prohibits all of these.  Still, North Carolina insists the Act does not implicate the First Amendment at all.   It forwards four arguments, but none persuades.”

PETA led coalition

The case against the North Carolina Property Protection Act was brought by PETA,  the Animal Legal Defense Fund,  the Center for Food Safety,  Food & Water Watch,  Farm Sanctuary,  the Government Accountability Project,  the American SPCA,  and Farm Forward.

Supporting briefs were filed by the United Farm Workers of America,  the Reporters Committee for Freedom of the Press,  seventeen other media organizations,  and several law professors.

Defending the North Carolina Property Protection Act were North Carolina attorney general Josh Stein;  Kevin Guskiewicz,  in his official capacity as chancellor of the University of North Carolina-Chapel Hill;  and the North Carolina Farm Bureau Federation.

“Ag-gag” laws on a losing streak

The U.S. Court of Appeals for the Fourth Circuit verdict against the North Carolina Property Protection Act was the latest in a long string of rulings against so-called “ag-gag” laws pushed to passage by agribusiness lobbying clout.

“Ag-gag” laws take various forms,  but have in common that they seek to prohibit undercover investigations that expose cruel,  offensive,  and often illegal activities on farms,  in slaughterhouses,  and in other facilities belonging to animal use industries..

U.S. District Judge Stephanie Rose on September 26,  2022 struck down the latest of four attempts by the Iowa legislature to pass an “ag gag” law prohibiting activists and journalists from producing undercover video of activities inside factory farms,  feedlots,  and slaughterhouses.

Iowa ag-gags have failed four times

Only five months before,  in March 2022,  the U.S. District Court for the Southern District of Iowa for the second time found unconstitutional an attempt by the Iowa state legislature and Iowa governor Kim Reynolds to criminalize undercover investigations at agricultural facilities,  including factory farms, slaughterhouses,  and commercial dog-breeding kennels,  colloquially known as “puppy mills.”

The first Iowa ag-gag law,  passed in 2012,  was rejected by the U.S. District Court for the Southern District of Iowa in 2019.

The lowa legislature then tried to end-run the verdict by passing a similar law which created a new crime called “agricultural production facility trespass.”

(See Fourth attempted Iowa “ag gag” law fails on first glance by a judge.)

1990 Kansas ag-gag failed in 2022

The U.S. Supreme Court,  meanwhile,  on April 25, 2022 rejected without comment an appeal by the State of Kansas against a January 2020 verdict by the U.S. District Court of Kansas,  upheld by the 10th U.S. Circuit Court of Appeals,  which in effect erased the oldest so-called “ag-gag” law in the country,  adopted in 1990.

The U.S. Supreme Court left intact the finding by a three-judge appellate panel that the Kansas “ag-gag” violated the First Amendment “by stifling speech critical of animal agriculture,”  Associated Press explained.

(See U.S. Supreme Court to Kansas:  Eat your ag-gag!)

Five states & four Canadian provinces still have ag-gags

Coalitions including and mostly led by the Animal Legal Defense Fund have also won verdicts striking down “ag-gags” in Idaho,  Utah, and Wyoming.

“Attempts to pass ag-gag laws have failed in 17 states,  including Washington,  California,  Arizona, New Mexico,  Colorado,  Nebraska,  South Dakota, Minnesota,  Illinois,  Indiana, Kentucky,  Tennessee, Florida,  Pennsylvania,  New York,  Vermont and New Hampshire,”  according to Progressive Farmer reporter Todd Neeley.

“Ag-gag” laws “currently remain in effect in Montana,  North Dakota,  Missouri,  Arkansas and Alabama,”  Neeley added,  and are also in effect in the provinces of Alberta,  Manitoba,  Ontario,  and Prince Edward Island,  Canada.

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