North Carolina whistleblower gag law dies at Supreme Court

WASHINGTON (CN) — The Supreme Court notched a win for First Amendment advocates in North Carolina on Monday, declining to review a state law struck down by a lower court that would punish people who expose their employers' misconduct. 

North Carolina’s Property Protection Act is an extreme version of an ag-gag law, which aims at preventing whistleblowers and undercover activists from recording footage showing abuse in animal agriculture. North Carolina’s version, however, covers all industries, assigning big risks to reporting not only animal mistreatment but also medical malpractice and child abuse. 

“We've seen the power of recording in so many ways,” David Muraskin, an attorney with FarmSTAND representing the animal rights groups in the case, said in a phone call. “George Floyd became a national issue and got the attention he deserved because someone was standing there with a phone recording what went on. We've seen how recordings document sexual harassment and abuse at the workplace.”

Muraskin praised the high court’s decision not to revive North Carolina’s law, saying Americans have a First Amendment right to communicate openly and honestly about these issues.

“The notion that an employer should be able to censor those recordings and keep that kind of dialogue from occurring really shows you the core value that drives this, which is secrecy and business profits are more important than the sanctity of our laws, values and of the safety of the people who live and work in the United States,” Muraskin said. 

The 2015 law would prevent employees from recording in nonpublic areas for uses that would breach the person’s duty of loyalty to the employer. North Carolina claims the law is aimed at protecting employers from disgruntled employees attempting to steal trade secrets, or campaign staffers working as double agents. Although the state recognizes the First Amendment rights of employees, it argues those rights are not unlimited. 

“The Fourth Circuit created a ‘newsgathering’ exception under the First Amendment to a state law’s generally applicable property and tort rules,” Ryan Park, North Carolina’s solicitor general, wrote in the state’s brief. “For decades, however, this Court has held that ‘[t]he right to speak and publish does not carry with it the unrestrained right to gather information’ by violating the rights of others.”

People for the Ethical Treatment of Animals — better known by its acronym, PETA — sued the state and a trade association representing North Carolina farmers, claiming the law violates the First and 14th Amendments. A federal judge granted summary judgment in favor of the animal rights groups, finding the law could not survive scrutiny. The appeals court agreed. 

North Carolina and the farmers trade association then turned to the justices in an attempt to save the law. 

“Because any restriction on speech here is merely incidental to the Act’s legitimate tort-based aims, the Act does not violate the First Amendment,” Park wrote. 

The farmers say the law would deal with serious problems of trespass, theft and surveillance. They say the First Amendment does not protect those activities and urged the justices to review the issues presented by the case. 

“This petition squarely presents an important question at the intersection of two core American constitutional values: the right of private property owners to exclude others from their premises and the extent to which the First Amendment protects individuals’ unauthorized undercover activities carried out in the name of ‘newsgathering,”  Brett Legner, an attorney with Mayer Brown representing the North Carolina Farm Bureau Federation, wrote in the trade group’s brief.

The high court disagreed, declining to review the petitions. None of the justices publicly dissented from the decision or provided an explanation for their decision. 

Versions of North Carolina’s law solely directed at the agriculture industry have faced an uphill battle across the nation. Federal judges have stuck down ag-gag laws in Wyoming, Idaho and Iowa. 

North Carolina and the farmers trade association did not respond to requests for comment on the denial. 

Follow @KelseyReichmann

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