North Carolina law banning undercover filming violates the First Amendment

North Carolina law banning undercover filming violates the First Amendment


A North Carolina law aimed at stopping investigations by animal rights activists violates constitutional free speech protections, an appellate court ruled Thursday.

The 2015 law bars employees from going into “nonpublic areas of an employer’s premises” for reasons unrelated to work and gathering documents or making recordings that “breach the person’s duty of loyalty to the employer.”

It was one of a wave of laws passed across the country in response to undercover exposés of the mistreatment of animals in large factory farms. Every one challenged in federal court has been found at least in part unconstitutional, said David Muraskin of Public Justice, a legal nonprofit that led a group challenge to the law. This decision is particularly important, he said, because it ties together several elements used in other recent so-called “ag-gag laws” — it did not specifically target agriculture, it created civil liability rather than a new crime, and it focused on recording and data collection.

That the court still deemed the law unconstitutional shows, Muraskin said, “that the ability of people to conduct investigations and expose misconduct is protected by the First Amendment.”

The North Carolina law was initially blocked by then-Gov. Pat McCrory (R), who feared it was so broad it would prevent reporting of child or elder abuse, but the state legislature overrode that veto. People for the Ethical Treatment of Animals sued along with other animal rights activists and pro-whistleblower groups.

PETA attorney Jared Goodman said in a statement that the group “will continue to support the constitutional right of whistleblowers and investigators to serve the public and animals by exposing the horrific cruelty that occurs behind the scenes in this industry.”

Eight years later, the U.S. Court of Appeals for the Fourth Circuit has deemed the law a discriminatory intrusion on free speech.

“If PETA’s actions truly violate some lawful prohibition (like trespass), PETA may be charged for that violation,” the court wrote. “What North Carolina may not do, however, is craft a law targeting PETA’s protected right to speak.”

The state’s claim that such undercover operations fall outside the First Amendment “is a dangerous proposition that would wipe the Constitution’s most treasured protections from large tranches of our daily lives,” the judges said. “Fortunately, it has no basis in law.”

The court declined to block all enforcement of the law, saying prohibitions on taking an employer’s data, placing a hidden camera on private property and interfering with property possession could theoretically be applied in ways that do not violate the First Amendment. But the state cannot bar “protected newsgathering activities PETA wishes to conduct.”

Twenty-four years ago, the same appeals court ruled that Food Lion could sue undercover ABC News journalists who exposed bad meat-handling practices. North Carolina argued that precedent covers this law — and a dissenting member of the panel agreed. “Our Court has already considered this exact mode of operation,” wrote Allison Jones Rushing, a Trump appointee.

But Judges Henry F. Floyd and Albert Diaz, both Obama appointees, said the relevant part of the Food Lion ruling was the refusal to award the supermarket chain damages for the negative reporting that resulted. The liability was only for “working for two competing employers at once.” North Carolina law’s argument that publication of recordings can be barred as evidence of disloyalty is “wordplay” designed “to sidestep the First Amendment,” the court found.

North Carolina law banning undercover filming violates the First Amendment

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