On June 7, 2018, we blogged about the Fourth Circuit’s opinion reinstating challenges to North Carolina’s so-called “ag-gag” law. Such statutes are common. Their objective is to prevent undercover investigations of agricultural facilities designed to uncover and publicize abuse of animals. These statutes raise serious First Amendment issues and the courts have generally enjoined their enforcement, in whole or in part.

The North Carolina statute is very similar to the Arkansas statute about which we blogged on June 12, 2020. It is not limited to agricultural facilities and it imposes no criminal sanctions, just a civil remedy by either the State or property owners that includes attorneys’ fees and $5,000-a-day punitive damages.  The statute prohibits gaining access to private property and acting “in excess of authority.”  It defines “excess authority” as one of five acts:

• Entering property for purposes other than bona fide employment or business, capturing data or records, and using that data to breach a duty of loyalty to the property owner.
• Entering property for purposes other than bona fide employment or business, recording images or sound, and using that data to breach a duty of loyalty to the property owner.
• Placing a camera or electronic surveillance device on the premises and using it to record images or data.
• Conspiring to engage in organized retail theft.
• Substantially interfering with the ownership or possession of real property.

The fourth element is perfectly legitimate. The first three raise clear First Amendment problems, and fifth potentially does so.

The District Court dismissed the case for want of standing but the Fourth Circuit reversed, holding that plaintiffs had adequately alleged standing, at least at the pleading stage. On remand, plaintiffs alleged two injuries in fact supported by affidavits:

• They have ceased to engage in the kind of undercover activities they previously used out of fear of liability under the statute.
• They rely on whistleblowers and undercover agents to provide information about animal abuses and those communications have ceased.

The Court also found that – unlike in Missouri – none of the defendants has disavowed an intent to enforce the statute. An injunction against enforcement would therefore redress the injury and hence plaintiffs had standing.

On the merits, the Court held that the challenges to subsections (b)(1) and (b)(5) could only proceed as as-applied challenges because some of the conduct prohibited by those subsections was clearly unprotected. For example, theft of corporate records for the purpose of hacking into the company’s bank account has no First Amendment protection. Subsections (b)(2) and (b)(3), by contrast, limit speech directly and hence may be challenged facially.

This distinction led to differing results for different plaintiffs. The Animal Legal Defense Fund proved it had previously conducted undercover operations but had not done so pending a ruling on whether the statute was constitutional.  Thus, it could pursue an as-applied challenge.  The other plaintiffs made no such allegation so they could not pursue an as-applied challenge.

The same result applied to subsection (b)(5). The Defense Fund and PETA had previously used investigators to seek employment at agricultural facilities to uncover dirt on their employers. They could pursue an as-applied challenge.  The other plaintiffs had not done so, so they could not pursue the as-applied challenge.

The Court held that none of the four subsections could survive even intermediate scrutiny. That standard requires the government to prove that the statute is narrowly tailored to serve a significant state interest and leaves open ample alternative lines of communication. The Court acknowledged that protection of private property is a legitimate state interest. But defendants presented no evidence that the ag-gag law was narrowly tailored to serve that end, or that existing trespass statutes were insufficient.

As we have suggested before, state legislatures could likely achieve much of their objective in suppressing undercover activity in agricultural facilities if they were more modest in their goals. As a general rule, the First Amendment does not protect false statements. In the Stolen Valor Act case, the Supreme Court held that a false statement that does not cause tangible harm is protected.  An ag-gag statute that prohibited the use of false statements with the purpose of causing tangible, economic harm to a facility owner would likely pass constitutional muster. The Ninth Circuit has already held as much.  A facility owner likely could make a submissible case against an undercover operator that had expressed a desire to put meat producers out of business.  Even a relatively tame actor such as the Defense Fund would have to be careful about what its ends were.  A statement that the undercover operation was intended to expose such serious misconduct as to lead to a regulatory shutdown likely makes a case.