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Split appeals court strikes down part of North Carolina ‘ag-gag’ law

The majority found a state law aimed at protecting farm property unconstitutionally blocks groups like PETA from conducting undercover investigations.

RICHMOND, Va. (CN) — A split Fourth Circuit panel on Thursday struck down part of a North Carolina law that prevented animal rights advocates from conducting undercover investigations into farming practices. 

The 2-1 decision sided with People for the Ethical Treatment of Animals and a coalition of public interest groups in a lawsuit that claims North Carolina’s Property Protection Act of 2015 unfairly penalizes whistleblowers. 

PETA was joined in the case by co-plaintiffs the Animal Legal Defense Fund, Center for Food Safety, Food & Water Watch, Government Accountability Project, American Society for the Prevention of Cruelty to Animals and Farm Forward. 

The groups say the state law silences those who wish to engage in covert newsgathering, and is an unconstitutional “ag-gag” law.

According to the Public Justice Food Project, which helped litigated the case, such laws “are an attempt to escape scrutiny over unsafe practices, environmental pollution, and worker and animal abuses.”

“Seeking to follow in the well-trodden footsteps of Upton Sinclair, People for the Ethical Treatment of Animals (PETA) wishes to conduct undercover animal-cruelty investigations and publicize what they uncover,” Senior U.S. Circuit Judge Henry Floyd wrote in a 42-page ruling. 

The Barack Obama appointee said both sides in the case “spill much ink” debating the repercussions of the 2015 law.

“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 and concentrate on what it believes the North Carolina General Assembly really meant to accomplish: end all undercover and whistleblowing investigations,” Floyd wrote, stating that the law poses a barrier to the group’s mission. 

North Carolina, by contrast, argues the law's punishment of trespassing is an important property protection measure. In the state’s view, speech restrictions that may occur as a result are an unfortunate, but acceptable side-effect. 

“Some provisions cover wide swaths of activities, such as ‘substantially interfering with the ownership or possession of real property,’ 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.’ Even these more specific provisions, however, potentially reach anything from stealing sensitive client information to ferreting out trade secrets in hopes of starting a competing business,” Floyd wrote. 

In 2020, U.S. District Judge Thomas Schroeder sided with PETA in blocking portions of the law.

Floyd, joined in the majority by fellow Obama appointee U.S. Circuit Judge Albert Diaz, affirmed the lower court's decision in part Thursday, blocking only parts of the law that “bar protected newsgathering activities.”

“The need to confront the Act’s potentially legitimate applications indeed makes our task difficult, especially on the sparse, pre-enforcement record before us, which renders all applications theoretical. But the First Amendment ‘give[s] the benefit of any doubt to protecting rather than stifling speech.’ So, cautiously, we forge ahead to ensure those protections endure for ‘more than just the individual on a soapbox and the lonely pamphleteer,’” Floyd wrote.

He added, “But we decide no more than we must. We enjoin the Act insofar as it applies to bar protected newsgathering activities PETA wishes to conduct. But we leave for another day all other applications of the Act.”

U.S. Circuit Judge Allison Rushing, a Donald Trump appointee, disagreed with her two colleagues. In a dissenting opinion, Rushing noted that the law “explicitly preserves existing protections for employees reporting wrongdoing under a laundry list of state statutes incorporated by reference and exempts from liability parties who are covered by those statutes.”

She said the rule also does not apply to law enforcement or governmental agency investigations.

“PETA has not been sued under the Act. In fact, the parties have not identified any case in which a plaintiff has sued under the Act based on investigative reporting, speech, or any expressive activity,” Rushing said, writing that PETA’s claims relied on hypotheticals and speculation. 

Categories: Appeals Business Civil Rights Law Regional

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