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Judge declares much of N.C. ag-gag law unconstitutional

A federal judge handed a victory late Friday to animal-welfare advocates when he declared that much of North Carolina’s ag-gag law violated the First Amendment’s free-speech provisions.

U.S. District Court Judge Thomas D. Schroeder’s ruling could also help employees who are trying to expose slaughterhouses that put their workforces at risk for COVID-19 infection, according to an attorney for the plaintiffs.

The law in question is called the Property Protection Act. Legislators passed it in 2015, as activists were publishing evidence of cruelty at North Carolina animal-agriculture operations. Three years earlier, Mercy for Animals released a hidden-camera video that it said showed workers kicking, stomping, and dragging turkeys at a Butterball semen-collection facility. Then, as the bill was being debated, Animal Outlook published a video that allegedly showed workers at a Mountaire Farms chicken plant punching and shoving birds that were shackled upside down.

Supporters of the Property Protection Act argued that activists should not be allowed to misrepresent themselves to get hired and sneak cameras into the workplace. “I don’t think an employee, or somebody doing deceptive things, ought to be able to go and collect evidence of whatever wrongdoing that’s out there,” said Representative Chuck McGrady, a Republican, during the House debate. “It’s personal property, folks. It’s something that’s protected in our Constitution.”

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Lawmakers crafted the measure so that it didn’t look like other states’ ag-gag bills. Instead of imposing criminal penalties, the bill allowed employers to sue employees who plant hidden cameras, make secret recordings, capture or remove documents from their workplaces, or interfere with the “possession of real property.” And it didn’t single out agriculture.

After it passed, eight organizations, including People for the Ethical Treatment of Animals (PETA) and the Animal Legal Defense Fund (ALDF), sued the state in federal District Court. The plaintiffs argued that the law squashed the constitutional rights of those trying to document and expose animal cruelty.

Schroeder initially dismissed the case in 2017, calling the plaintiffs’ fears “hypothetical.” The U.S. Court of Appeals for the Fourth Circuit reversed Schroeder’s initial dismissal in 2018, saying the plaintiffs had a “reasonable and well-founded fear” that the law would chill their work in North Carolina.

By the time the case landed back in Schroeder’s courtroom, it had grown larger than a skirmish over animal rights. Twenty-two news organizations had filed a friend-of-the-court brief saying the law would stifle whistleblowers and make it harder to do investigative journalism. The North Carolina Farm Bureau successfully petitioned to intervene as a defendant, saying the new law gives its members “important protections.”

Schroeder’s 73-page ruling on Friday delicately dissected the law. Some provisions, he wrote, violated the First Amendment on their face. Others were unconstitutional when applied to the type of undercover work that PETA and ALDF do. But employers could still sue their workers for constitutionally unprotected acts, he wrote — for example, “opening a gate to let livestock out.”

State Representataive John Szoka, a Republican and the bill’s primary sponsor, told FERN that he’s disappointed by the ruling. “I did everything I could to make sure that no one’s First Amendment rights were being restricted,” he said.

David Muraskin, an attorney with Public Justice, a nonprofit law firm representing the plaintiffs, called the ruling a “complete win” for those looking to expose abuses. “Essentially … anyone who wants to engage in an undercover investigation of a facility should not fear [this law],” he said. “To the extent the function of your activity is speech, rather than stealing … you should be protected by the First Amendment.”

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Muraskin noted that the ruling is timely given the COVID-19 pandemic. North Carolina’s food system has had several major outbreaks, according to a map compiled by FERN, including 570 cases at a Tyson chicken plant, 72 cases at a Smithfield Foods pork plant (the world’s largest), and 59 cases at the same Mountaire chicken plant where activists had alleged abuse in 2015.

“I think this [ruling] should alleviate a lot of fear for people who want to come forward,” Muraskin said. “Given everything that we know is going on in North Carolina slaughterhouses — about the risk that employees are being subject to today because of COVID-19 — I think it’s a particularly important moment to get that clear: the threat of civil sanction from warning the public about the risks you’re facing in these workplaces … you should be much less fearful of this law. The logic of his decision is that the law should not apply to you … You should not have to worry about it.”

Produced with FERN, non-profit reporting on food, agriculture, and environmental health.
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