[Editor’s Note: the report below is a rather hasty treatment of a 60-page decision released last week and still under analysis by author for future discussion.]

Last week the 4th Circuit Court of Appeals in a 2-1 decision partially affirmed a lower court’s striking of key provisions in the North Carolina’s Property Protection Act (North Carolina General Statute § 99A-2). The law was successfully challenged on First Amendment grounds by People for the Ethical Treatment of Animals (PETA) and other groups before the Middle District of North Carolina in 2020, which struck certain provisions of the law as afoul of First Amendment press freedoms. Defending the law was the State of North Carolina, supported by other groups including NC Farm Bureau Federation for its implications in animal agriculture. (See author’s 2020 summary of the federal district court decision)

So called “Ag Gag” laws  – adopted in several other states but similarly challenged on First Amendment grounds  – are designed to discourage the clandestine collection and publication of information by employees of a business who are doing so on behalf of a third party. One known purpose of such laws is to prevent organizations like PETA from directing an individual to infiltrate an animal agriculture operation as an employee of that operation – such as a dairy or swine farm – to secretly record activities, which may then be used to publicize perceived animal cruelty and the like (hence “Ag Gag”). The law, however, is generally applicable and not limited to agriculture.

PETA’s challenge to the law was prospective, and while not based on any particular incident involving a farm operation, was allowed to proceed before the NC Middle District given the sensitivity of such matters concerning potential suppression First Amendment press activity (known as “pre-enforcement”).

The NC Property Protection Act creates a right of action on behalf of employers against employees who without permission collect information by various means, including unattended recording devices, offering employers recoverable damages up to $5,000 per day, plus attorney’s fees. The Act also holds accountable those who intentionally direct, assist, compensate, or induce another person such trespass (i.e. animal rights organizations). The Middle District in its 2020 decision had found that the wording of the statute bound it closely to an infringement on protected speech. NC Farm Bureau and State of North Carolina appealed that decision.

Applying the judicial review concept known as “intermediate scrutiny” (appropriate to First Amendment cases reviewing statutes that target “speech”), the 4th Circuit Court majority’s lengthy decision essentially severed the portions of the Property Protection Act which potentially applied to PETA’s “newsgathering” activities. The Court found that North Carolina had “produced no record evidence justifying its expansive restrictions on newsgathering speech and because their newsgathering prohibitions are not tailored to any substantial government interest.”

Thus, the Fourth Circuit partially affirmed the lower court’s ruling by precluding enforcement of certain sections of the statute against potential “protected newsgathering” activities by PETA and other plaintiffs including the American Society for Prevention of Cruelty to Animals (ASPCA) (i.e. related to animal cruelty), and declined to strike the law as an “overbroad” offense to the First Amendment. The Court noted in its majority opinion that the State of North Carolina had demonstrated legislative history behind the passing of the Act meant to address various applications of the law (not just a narrow targeting of animal cruelty investigations), and that the Act passed as a bipartisan measure. The Court adopted a “wait and see” approach in that the Act may be judged in other contexts arising in the future, concluding that  “[w]e enjoin North Carolina from applying the Act to PETA’s newsgathering activities but sever and reserve all other applications for future case-by-case adjudication.”

Judge Rushing, in dissent, argued that general principles of common law tort trespass and an employee’s duty of loyalty should not be judged offensive to the principles of the First Amendment without actual an application to review. He argued that the Property Protection Act – in applying principles of trespass and employee loyalty – still could prevent such activities as appropriation of trade secrets, sabotage, espionage, extortion, etc. He noted that state laws protecting whistle-blowers remained in effect and are not thwarted by the law.

Here is a link to the 60-page decision and dissent, PETA et al v. NC Farm Bureau Federation and the State of North Carolina.

[Further analysis to come]