In a decision that animal rights advocates are calling a big win over big agricultural interests, a federal appeals court last week struck down part of a North Carolina law, declaring that it violated the constitutional guarantee of free speech.
“Given how vital undercover investigations are to our work to reveal and end the suffering of pigs, chickens, cows, and other farmed animals, this is a major victory for investigators and whistleblowers,” the People for the Ethical Treatment of Animals said in a statement.
The North Carolina Farm Bureau Federation, closely affiliated with North Carolina Farm Bureau Insurance, one of the largest carriers in the state, had intervened in the appeal on the side of the state. It urged the judges at the 4th U.S. Circuit Court of Appeals to uphold the 2015 state law that sought to limit undercover reporting operations.
It’s the seventh federal court ruling striking down part or all of similar “ag gag” laws in other states, including Utah, Kansas, Wyoming, Idaho and Iowa, according to PETA.
The decision could potentially embolden more groups to undertake filming of some types of corporate activities, including employment conditions or even insurance company actions in property claims.
In some states, including Florida, video taping of insurance adjusters already has been upheld in limited circumstances. Last June, a Florida appeals court held for the third time in three years that homeowners may videotape insurance carriers’ adjusters in action on their property, as long as the practice is not barred by the insurance policy.
On the other side of the coin, it’s possible that the 4th Circuit’s Feb. 23 opinion in the North Carolina case could give more cover to insurance fraud investigators, who often utilize surveillance video of claimants suspected of exaggerating or fabricating insurance claims.
The PETA case arose after North Carolina lawmakers in 2015 approved the Property Protection Act, which aimed to penalize people who gain access to “nonpublic areas” of a property and engage in acts beyond their authority. Those acts may include photographing employer data or trade secrets. The act sought to codify part of the landmark 1999 Food Lion vs. Capital Cities/ABC News decision, in which the 4th Circuit upheld a company’s right to sue news reporters who had used false names to gain employment at the grocery chain.
PETA attorneys in the recent case argued that the 2015 law was nothing more than a “discriminatory speech restriction dressed up in property-protection garb,” Senior Circuit Judge Henry Floyd wrote for the panel of judges.
The activist group is known for exposing what it calls cruel and inhumane conditions at animal farming operations, and it told the court that lawmakers had aimed to end all undercover and whistleblowing investigations. North Carolina is home to some of the largest hog-farming and poultry operations in the country.
The North Carolina Attorney General’s office defended the law and said that any restrictions on speech are only incidental and are unavoidable side effects of the law’s remedies against trespassing and disloyalty by employees.
The 4th Circuit did not agree.
“PETA seeks to conduct undercover investigations. It wishes to speak to employees, record documents found in nonpublic (but not necessarily private) areas, and carry out surveillance. The Act prohibits all of these. Still, North Carolina insists the Act does not implicate the First Amendment at all. It forwards four arguments, but none persuades,” the court wrote.
The state and the Farm Bureau Federation argued that undercover investigations in nonpublic areas constitute unprotected speech.
“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,” the judges noted.
For more than 230 years, the U.S. Supreme Court has placed only a few types of speech outside of the First Amendment protections, including obscenity, defamation, fraud, incitement and speech used to further criminal conduct, the 4th Circuit opinion explained.
“That history must control, for it ensures that the First Amendment’s shield falls away only from those narrow categories of speech for which the Constitution never intended protection, not from those forms of speech that the legislative majority just prefers not to protect,” the court wrote.
An employer may freely choose to deny access to journalists who want to secretly record a company’s inner workings, but a state legislature cannot create “new categories of unprotected speech” to punish those journalists, the opinion continued.
Simply put, the First Amendment limits the government; the government does not limit the First Amendment, Floyd wrote.
Floyd was appointed in 2003 by then-President George W. Bush to the federal district court in South Carolina. In 2011, President Barack Obama nominated him to the appeals court bench. He took senior status in 2021, according to the 4th Circuit.
The court enjoined the property act’s sections that bar newsgathering-type activities that PETA conducts, but said that other provisions of the law would have to be decided separately, on a case-by-case basis.
“We’re thrilled about this affirmation of free speech,” PETA said on its website. “If knowing what goes on behind closed doors in North Carolina’s agricultural industry really would harm its profits—and we have a hunch it might, given the documented human toll of factory farms in the state—then it better clean up its act.”
Circuit Judge Allison Rushing dissented in the opinion, noting that tort law already prohibits trespass and breach of duty, and does not offend the First Amendment.
NC Farm Bureau Federation’s general counsel could not be reached for comment Monday.