{"id":99,"date":"2023-02-24T19:31:00","date_gmt":"2023-02-24T19:31:00","guid":{"rendered":"https:\/\/faculty.law.harvard.edu\/joseph-singer\/?p=99"},"modified":"2024-01-04T21:31:51","modified_gmt":"2024-01-04T21:31:51","slug":"fourth-circuit-strikes-down-north-carolinas-ag-gag-law-under-the-first-amendment","status":"publish","type":"post","link":"https:\/\/faculty.law.harvard.edu\/joseph-singer\/2023\/02\/24\/fourth-circuit-strikes-down-north-carolinas-ag-gag-law-under-the-first-amendment\/","title":{"rendered":"Fourth Circuit strikes down North Carolina’s “ag-gag” law under the First Amendment"},"content":{"rendered":"\n

People for the Ethical Treatment of Animals (PETA) v. N.C. Farm Bureau Federations, Inc.,<\/a> 2023 WL 2172219 (4th<\/sup>Cir. 2023)<\/p>\n\n\n\n

In a very complicated ruling, the Fourth Circuit has struck down North Carolina\u2019s \u201cag-gag\u201d law that prohibited employees from engaging in \u201cundercover animal-cruelty investigations and publiciz[ing] what they uncover\u201d on the ground that it violates their First Amendment free speech rights. The North Carolina Property Protection Act (the \u201cAct\u201d) prohibits \u201cintentionally gain[ing] access to the nonpublic areas of another\u2019s premises and engag[ing] in an act that exceeds the person\u2019s authority to enter.\u201d N.C. Gen. Stat. \u00a799A-2(a).<\/p>\n\n\n\n

The court suggests that North Carolina can achieve any legitimate goals it has in protecting private property by focusing on the interests that trespass law protects in the exclusive possession of land. Unauthorized access can be prohibited but that cannot be conditioned on regulating speech that is protected by the First Amendment.<\/p>\n\n\n\n

PETA challenged four provisions of the Act that constitute \u201can act that exceeds a person\u2019s authority to enter\u201d to encompass:<\/p>\n\n\n\n

(1) An employee … enter[ing] the nonpublic areas of an employer’s premises for a reason other than a bona fide intent of seeking or holding employment or doing business with the employer and thereafter without authorization captur[ing] or remov[ing] the employer’s data, paper, records, or any other documents and us[ing] the information to breach the person’s duty of loyalty to the employer.<\/p>\n\n\n\n

(2) An employee … enter[ing] the nonpublic areas of an employer’s premises for a reason other than a bona fide intent of seeking or holding employment or doing business with the employer and thereafter without authorization record[ing] images or sound occurring within an employer’s premises and us[ing] the information to breach the person’s duty of loyalty to the employer.<\/p>\n\n\n\n

(3) Knowingly or intentionally placing on the employer’s premises an unattended camera or electronic surveillance device and using that device to record images or data….<\/p>\n\n\n\n

(5) [Committing a]n act that substantially interferes with the ownership or possession of real property.<\/p>\n\n\n\n

The Fourth Circuit held that the Constitution protects the right to engage in \u201cundercover investigations in nonpublic areas\u201d while employers are free to \u201cdeny entry to journalists who seek to secretly record its inner workings.\u201d Nor does the Constitution prohibit laws that regulate secret wiretapping.<\/p>\n\n\n\n

However, all four challenged provisions \u201cburden newsgathering and publishing activities.\u201d The court explained:<\/p>\n\n\n\n

\u201cSubsection (b)(1)’s prohibition on using \u201ccaptur[ed]\u201d data in a disloyal manner prevents an undercover employee from publishing a critical article based on any notes she takes of documents or policies laid out in a breakroom.<\/p>\n\n\n\n

\u201cSubsection (b)(2) forbids including a photograph of the same documents in the article. Subsection (b)(3) then punishes the undercover employee for placing an unattended camera on the factory floor while she works.<\/p>\n\n\n\n

\u201cAnd the \u201ccatch-all\u201d (b)(5), may reach even mere reporting of a conversation had with other employees\u2014to a newspaper, a union, a state agency\u2014if the reporting leads the State to shut down the facility. See<\/em>id.<\/em> \u00a7 99A-2(b)(5) (prohibiting acts \u201cthat substantially interfere[ ] with the ownership or possession of real property\u201d).\u201d<\/p>\n\n\n\n

The court noted that the First Amendment protects the \u201ccreation\u201d of information as well as its \u201cdissemination\u201d and thus it safeguards the \u201cright to gather information as a predicate to speech.\u201d The challenged provisions target speech rather than conduct and specifically speech critical of the employer.<\/p>\n\n\n\n

\u201cSubsections (b)(1), (2), and (5) on their face single out speech. They would permit a journalist to procure employment under false pretenses, copy employer documents, and record backstage footage\u2014so long as she keeps those findings to herself. Yet a journalist who conducts<\/em> herself in the exact same manner but speaks out against<\/em> the employer would face heavy penalties.\u201d<\/p>\n\n\n\n

And subsection (b)(3) singles out employees who speak out against the employer\u2019s practices and \u201callowing speech by some but not others\u201d violates the First Amendment.\u201d<\/p>\n\n\n\n

Because all four provisions burden speech, they are subject to strict scrutiny and cannot survive because they chill speech when lesser restrictions on conduct could achieve the government\u2019s legitimate purposes. In addition, the restrictions do not serve the state\u2019s professed interests in protecting the rights of property owners. In general, \u201ctrespassory interests\u201d concern \u201chow\u2026information is obtained\u201d but this statute regulates the conduct only when it violates a duty of loyalty to the employer. And the provisions do not serve interests in privacy because they target only certain types of persons who obtain private information and reveal it publicly. Even the provision against placing recording devices applies only to employees not to trespassers, severing the link between the interests the law is supposed to serve and the actor based on the notion that employees have lesser free speech rights than others.<\/p>\n\n\n\n

Because there are some applications of the statutes that would be constitutional, and because PETA challenged the statute on its face, the court declined to enjoin any potential applications of the law. The court reversed the lower court\u2019s finding that subsections (b)(2) and (b)(3) were void on the ground that it was not clear that \u201call recording is protected speech.\u201d The court held instead that \u201cit suffices to hold only that recording in the employer’s nonpublic areas as part of<\/em> newsgathering constitutes protected speech.\u201d The court\u2019s holding was that the Act is unconstitutional \u201cwhen applied to bar newsgathering activities.\u201d<\/p>\n\n\n

Free Speech<\/a>, <\/span>Trespass<\/a><\/div>","protected":false},"excerpt":{"rendered":"

People for the Ethical Treatment of Animals (PETA) v. N.C. Farm Bureau Federations, Inc., 2023 WL 2172219 (4thCir. 2023) In a very complicated ruling, the Fourth Circuit has struck down North Carolina\u2019s \u201cag-gag\u201d law that prohibited employees from engaging in \u201cundercover animal-cruelty investigations and publiciz[ing] what they uncover\u201d on the ground that it violates their First Amendment free speech rights. The North Carolina Property Protection Act (the \u201cAct\u201d) prohibits \u201cintentionally gain[ing] access to the nonpublic areas of another\u2019s premises and engag[ing] in an act that exceeds the person\u2019s authority to enter.\u201d N.C. Gen. Stat. \u00a799A-2(a). The court suggests that North Carolina can achieve any legitimate goals it has in protecting private property by focusing on the interests that trespass law protects in the exclusive possession of land. Unauthorized access can be prohibited but that cannot be conditioned on regulating speech that is protected by the First Amendment. PETA challenged four provisions …<\/p>\n

Fourth Circuit strikes down North Carolina’s “ag-gag” law under the First Amendment<\/span> Read More »<\/a><\/p>\n","protected":false},"author":17,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","footnotes":""},"categories":[32,8],"tags":[],"class_list":["post-99","post","type-post","status-publish","format-standard","hentry","category-free-speech","category-trespass"],"featured_image_src":null,"featured_image_src_square":null,"author_info":{"display_name":"jsinger","author_link":"https:\/\/faculty.law.harvard.edu\/joseph-singer\/author\/jsinger\/"},"_links":{"self":[{"href":"https:\/\/faculty.law.harvard.edu\/joseph-singer\/wp-json\/wp\/v2\/posts\/99","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/faculty.law.harvard.edu\/joseph-singer\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/faculty.law.harvard.edu\/joseph-singer\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/faculty.law.harvard.edu\/joseph-singer\/wp-json\/wp\/v2\/users\/17"}],"replies":[{"embeddable":true,"href":"https:\/\/faculty.law.harvard.edu\/joseph-singer\/wp-json\/wp\/v2\/comments?post=99"}],"version-history":[{"count":0,"href":"https:\/\/faculty.law.harvard.edu\/joseph-singer\/wp-json\/wp\/v2\/posts\/99\/revisions"}],"wp:attachment":[{"href":"https:\/\/faculty.law.harvard.edu\/joseph-singer\/wp-json\/wp\/v2\/media?parent=99"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/faculty.law.harvard.edu\/joseph-singer\/wp-json\/wp\/v2\/categories?post=99"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/faculty.law.harvard.edu\/joseph-singer\/wp-json\/wp\/v2\/tags?post=99"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}