Supreme Court to consider taking case tied to NC ‘ag-gag’ law | Eastern North Carolina Now

    Publisher's Note: This post appears here courtesy of the Carolina Journal. The author of this post is CJ Staff.

    The nation's highest court will consider Tuesday a pair of petitions related to a legal dispute surrounding North Carolina's "ag-gag law." Both state Attorney General Josh Stein and the North Carolina Farm Bureau Federation have asked the court to take the case in its upcoming term.

    The 4th US Circuit Court of Appeals issued a split 2-1 ruling in the case in February. Appellate judges struck down a portion of the law - officially, the 2015 Property Protection Act - that blocked animal-right activists groups such as People for the Ethical Treatment of Animals from conducting undercover "news" operations.

    The 4th Circuit ruling upheld the rest of the law. That decision reversed sections of a 2020 trial court decision that blocked more of the law's provisions from taking effect.

    Attorneys from Stein's state Justice Department posted their latest court filing in the case on Aug. 23.

    "The North Carolina Property Protection Act combines longstanding property and tort rules: It prohibits double-agent employees from stealing or secretly recording in the nonpublic areas of their employer's property and then using the information they gather to harm the employer," state Justice Department lawyers wrote. "A divided Fourth Circuit panel held that the Act is unconstitutional, but only when the double-agent employee has a 'newsgathering' aim."

    The decision creates a "circuit split," Stein's lawyers explained. This means federal appellate courts in different parts of the country have issued different rulings on the same issue.

    "This decision implicates a circuit conflict over whether, and in what circumstances, unauthorized recording on private property is protected speech," the state's petition continued. "And it arises against the backdrop of broader confusion over the rules that States must follow when they seek to reinforce private property rights consistent with the First Amendment."


    "As a coalition of 16 States rightly notes, this uncertainty 'makes drafting statutes more difficult for States, increases litigation, and leads to inconsistent results across the country,'" state lawyers wrote. "This Court's review would therefore provide sorely needed guidance to the States across the nation that actively legislate in this area of the law."

    The Farm Bureau also filed its latest brief on Aug. 23. It referenced PETA and the Animal Legal Defense Fund.

    "Respondents PETA, ALDF, and similar animal rights activists place their own employees in jobs at medical research facilities and private agricultural operations so that they can steal 'employment-related documents' and use 'hidden recording equipment,' such as 'wear[ing] a minute camera' or 'leav[ing] recording devices unattended' in what they concede are private areas of the business 'largely concealed from public view,'" Farm Bureau lawyers wrote. "[G]iven the proliferation of legislative activity in this area, States and targeted businesses 'need to know' now whether these fake employees and their true employers are entitled to First Amendment protection because they claim that their trespasses, secret recordings, thefts of information, and breaches of the duty of loyalty are 'newsgathering.' They are not."

    The Farm Bureau brief cited the 4th Circuit dissent from Judge Allison Jones Rushing. "As Judge Rushing recognized, North Carolina was entitled in the Property Protection Act to create 'generally applicable' causes of action for 'trespass' and the 'employment tort' of breach of duty of loyalty that reach such conduct, which 'does not merit heightened First Amendment scrutiny simply because it may be enforced equally against an investigative reporter and a business competitor.'"

    The 4th Circuit's majority opinion had compared PETA's work to an early 20th-century muckraker.

    "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," wrote 4th Circuit Senior Judge Henry Floyd. "But it faces a formidable obstacle: North Carolina's Property Protection Act (the Act), passed to punish '[a]ny person who intentionally gains access to the nonpublic areas of another's premises and engages in an act that exceeds the person's authority to enter.'"

    Floyd and Judge Albert Diaz limited their ruling to newsgathering activity. The majority opinion pointed to other questions about the 2015 law that remained unresolved.

    "Should posting a hidden camera in a CEO's office - or her home - per se constitute protected expression? How about photographing proprietary documents to tap into trade secrets, with no intent of creating a work of art? Recording private telephone conversations?" Floyd asked.


    "Whatever the Act's real applications beyond newsgathering, the material point today is that these questions remain unanswered, lurking in the background and warning us away from prejudging the entire Act in a pre-enforcement challenge," he added.

    Supreme Court records indicate that justices are scheduled to consider both petitions Tuesday. The court will announce at a later date whether it will take the case.