Appeals court strikes down part of NC ‘ag gag’ law, protects undercover investigations

Barring employees who are trying to expose wrongdoing from gathering data at work or recording there violates the First Amendment, the U.S. Fourth Circuit Court of Appeals ruled in a challenge to a 2015 North Carolina law.

The 2015 Property Protection Act prevented employees who are going undercover from recording videos or gathering information in “nonpublic areas” that is then used against the employer. Violating the law could carry penalties as high as $5,000 a day.

Animal rights groups argued that the law would prevent them from conducting investigations where advocates pose as farm employees, gathering information and recording what happens there in order to report it. That act of gathering information is a necessary step before sharing it with the broader public, and thus protected, Fourth Circuit Court of Appeals Senior Judge Henry Floyd wrote in the majority opinion.

“Because we find no categorical reason to sidestep the First Amendment, we are left with the question whether the speech PETA seeks to undertake is ‘speech’ the First Amendment protects. We have no doubt that it is,” Floyd wrote.

Floyd’s decision struck down only the parts of the act that try to bar newsgathering activities. The law could still be used to protect client lists or trade secrets.

Plaintiffs celebrated the ruling as a necessary win.

“The gusto in which industrial animal agriculture continues to fight to keep witnesses out of factory farms and slaughterhouses paints a disturbing image of America’s food system — and creates increased urgency for transparency,” Amanda Howell, the Animal Legal Defense Fund’s managing attorney, said in a written statement.

Other plaintiffs in the suit included People for the Ethical Treatment of Animals, Center for Food Safety, Food & Water Watch, Farm Safety, Government Accountability Project, American Society for the Prevention of Cruelty to Animals and Farm Forward.

“In these David vs. Goliath scenarios where it is one person’s word against the messaging machine of corporate giants, undercover video often becomes the arbiter of truth,” Amanda Hitt, the Government Accountability Project’s food integrity campaign director, wrote in a statement.

Naz Ahmed, a spokeswoman for N.C. Attorney General Josh Stein, said in an email that the office is reviewing the decision. A spokesperson for the N.C. Farm Bureau did not respond to a request for comment.

In 2015, the North Carolina General Assembly passed House Bill 405, titled the Property Protection Act. The legislation was one of a series of pro-agriculture bills the legislature passed in response to scrutiny from environmental groups and lawsuits from neighbors.

At first, animal welfare groups made up the legislation’s primary opposition, arguing it would curb undercover investigations and recordings.

But the bill was written broadly. Its protections applied to any business, not just farms. That spurred the AARP to join the opposition, arguing that nursing home workers who document abuse could face legal repercussions, The News & Observer reported.

Then-Gov. Pat McCrory said he supported using the bill to protect the agricultural industry, but he vetoed it because it could be used to prevent “good employees” of nursing homes or other industries from reporting wrongdoing.

The General Assembly voted to override McCrory’s veto.

McClatchy, which owns The News & Observer, was one of several news organizations that joined an amicus brief supporting PETA in the case. The news organizations wrote that the law was intended to obstruct reporters’ ability to report on topics like food safety, treatment of lab animals and how agricultural workers are treated.

“If whistleblowers (and other would-be sources) are punished for documenting evidence of dangerous, illegal or unethical activity that they encounter, journalists will not be able to do their jobs effectively,” the brief stated.

In front of the Circuit Court, the N.C. Department of Justice argued that undercover investigations in nonpublic areas are not protected speech under the First Amendment.

“That is a dangerous proposition that would wipe the Constitution’s most treasured protections from large tranches of our daily lives. Fortunately, it has no basis in law,” Floyd wrote.

Floyd went on to write that the North Carolina law bars employees from writing critical articles about their employers based on documents left in the breakroom, prevents employees from taking pictures of those documents and prevents employees from filming the factory floor while they work.

Even discussing conversations at work with journalists or representatives of a state agency, Floyd determined, could result in action against the employee if those disclosures resulted in the employer being shuttered. Those penalties could extend, Floyd wrote, to a watchdog publishing PETA’s findings or a union exposing child labor violations to a state agency.

“The scope of this outright ban cannot be overstated,” Floyd wrote.

Attorneys for North Carolina also argued that whistleblower laws offer sufficient protection to employees raising the alarm about their workplace. But the state’s laws offer “narrow protections,” Floyd wrote, only protecting formal whistleblowers who are reporting retaliatory employment discrimination and state employees who are testifying before the legislature.

The Appeals Court’s opinion was more narrow than a 2020 decision from the U.S. District Court for the Middle District of North Carolina. There, Chief District Judge Thomas Schroeder declared that all recording is a protected act, where the Appeals Court decided only that recording that is part of newsgathering should be protected.

Floyd was joined in his opinion by Judge Albert Diaz. They were both Obama appointments to the Circuit Court, although Floyd was appointed to the U.S. District Court by George W. Bush.

Judge Allison Rushing, who wrote a dissenting opinion, was a Trump appointee.

Rushing’s dissent holds that a 1999 decision where the Fourth Circuit ruled that reporters taking undercover video of meat handling at Food Lion represented trespassing and a breach of the duty of loyalty should shape the PETA decision.

Additionally, Rushing wrote, interest in information contained within does not grant someone the right to enter property and record there. Barring recording is an effort to uphold an employee’s duty to their employer, Rushing argued, not to ban speech.

This story was produced with financial support from 1Earth Fund, in a N&O maintains full editorial control of the work.