Attorney General Josh Stein’s office defends state’s “ag-gag law,” appeals previous ruling that it’s unconstitutional

North Carolina’s “ag-gag” law, which curbs watchdogs’ ability to document wrongdoing in “non-public areas” of their places of employment, is again before the Fourth Circuit Court of Appeals.

Last June, federal Chief Justice Thomas Schroeder of the Middle District Court of North Carolina issued his 73-page decision declaring the law unconstitutional because it violated the First Amendment.

Attorney General Josh Stein’s office has appealed that decision on behalf of defendants, the state and UNC Chapel Hill. The NC Farm Bureau Federation had also intervened in the case on behalf of the defense. The plaintiffs then cross-appealed. They include animal rights advocates, including Farm Forward, PETA, Food and Water Watch and the ASPCA. The Reporters Committee for Freedom of the Press also filed a friend of the court brief supporting the plaintiffs.

Passed in 2015, the law was entitled the “Property Protection Act.” It allowed courts to assess civil penalties on employees who took videos or photos of a business’s non-public areas to document alleged wrongdoing, and then passed that information to anyone besides the employer or law enforcement. While bill supporters argued that it protected businesses from the theft of trade secrets, its underlying intent was to thwart animal rights activists from getting hired at farms and research labs and then conducting undercover investigations.

However, the law was broad enough that it could have applied to any employee:

• Law enforcement officers who documented abuses by fellow officers — but didn’t have faith in their supervisors to act — could have also been penalized had that information been passed to outside parties.
• Workers at nursing homes or meatpacking plants who wanted to document sanitation practices during COVID-19 and pass the photos or video to the media could have been penalized.
• Reporters who asked workers to document alleged offenses were also subject to the law.

The civil penalties were steep: up to $5,000 per day, plus attorney’s fees.

In court filings, Stein’s office argued that the First Amendment doesn’t apply because the Property Protection Act governs how the material is collected — by trespassing — not its content.  The Act bars individuals from “breaching a duty of loyalty to an employer,” which is not a constitutional issue, court documents read. “The First Amendment does not protect unlawful information gathering,” court documents read. “Truthful information sought to be published must have been lawfully acquired.”

However, the duty of loyalty clause is usually construed to guard against the theft of trade secrets or the use of one employer’s inside information to benefit a second employer.

In many watchdog cases, the undercover activity is intended to publicly expose wrongdoing, not to give a competitive advantage to another company.

Attorneys for the plaintiffs argued that in fact, the Act does regulate speech based on its content.

“It is focused on restricting anti-employer speech,” court documents read. On the other hand, it’s unlikely that an employer would file a complaint against someone capturing footage or photographs that show the workplace in a positive light.

At that time, Rep. Jonathan Jordan, an Ashe County Republican, said he co-sponsored the bill because he had “family and friends who are in the restaurant industry and he wished to prevent embarrassment to them from people revealing what goes on,” according to court documents. Jordan acknowledged the bill could affect news gathering “but stated this was justified because he was convinced that the media can do its job in other ways.”

Plaintiffs’ attorneys noted that “non-public areas” are not necessarily private. While they are off-limits to the general public, other people — employees, contractors and delivery personnel — can access them.

In its brief, the Reporters Committee for Freedom of the Press argued the district court’s ruling should stand in order to ensure that journalists “are able to report on matters of public concern without facing unconstitutional impediments to their newsgathering activities. 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.  … Interference with newsgathering activities was not only the law’s result, but also it was the law’s intent.”

Several media organizations also filed briefs supporting the plaintiffs, including the NC Press Association and the Society of Professional Journalists. Policy Watch and its reporters are members of the NCPA; Lisa Sorg is also a member of SPJ.