North Carolina is one of five states where agricultural whistle-blower laws have been declared unconstitutional. (source: ASPCA)

This story was originally published by the Midwestern Center for Investigative Reporting.

North Carolina thought they had it wired – a Teflon ag-gag law guaranteed to keep the public from knowing what actually happens behind the closed doors of Big Meat and Big Ag operations.

North Carolina’s 2015 Property Protection Act permitted courts to hand out civil penalties up to five thousand dollars a day on employees who took pictures or videos in businesses’ non-public areas, and then handed them to anyone other than the employer or law enforcement in order to show potential wrongdoing.

The act was not narrowly directed at agriculture, but applied to any business operating in the state.

Proponents of the act said it was necessary to protect trade secrets. But let’s be honest here. The act’s true intent in major hog-producing hub North Carolina was to prevent animal rights activists from conducting undercover investigations. Reporters were also subject to the law in the conduct of their work.

North Carolina’s law didn’t come out of thin air, but rather was something of a cut and paste job from work of the American Legislative Exchange Council, funded largely by Anheuser-Bush, Pfizer, and ExxonMobil. Back in 2003 ALEC wrote the Animal and Ecological Terrorism Act and peddled it to Utah, Idaho, Iowa, Kansas, and Wyoming….and none of those survived court scrutiny either. Interesting Arkansas is now considering its own ag-gag law — wait for it — that’s almost identical to North Carolina’s PPA. If at first you don’t succeed...?

ALEC had hoped that civil penalties rather than criminal penalties would allow their law draft to survive First Amendment challenges. ALEC’s thinking was that civil penalties are not “punishment.”

Chief Justice Thomas Schroeder of the Middle District Court of North Carolina wasn’t buying what ALEC, North Carolina attorney general, and North Carolina Farm Bureau were selling.

In his 73-page decision Schroeder absolutely skewered the ag-gag statute:

“Defendants rightly note that the present case differs from numerous other similar lawsuits across the country that challenge restrictions on undercover investigations, particularly of agricultural operations. As far as the court can discern, nearly all other similar laws impose criminal liability while the Property Protection Act provides a civil cause for action for damages. But while the Act operates in the private sphere, it is state action to the extent the State has identified speech (or in some cases, conduct which can include speech) it wishes to allow to be proscribed and has empowered private parties to enforce the prohibition.”

Not only did Schroeder see through that flimsy smoke screen but for good measure he tossed out portions of the PPA on First Amendment grounds. Schroeder wrote that the law as enacted, “will always target speech and speech will always be the activity that triggers the liability” — in this case the five-grand per day civil penalties.

North Carolina legislators — in their rabid passion to protect their Big Meat buddies — overrode the veto of then Governor Pat McCrory who wrote the PPA “does not adequately protect or give clear guidance to honest employees who uncover criminal activity. I am concerned subjecting these employees to potential civil penalties will create an environment that discourages them from reporting illegal activities.”

It’s great irony that in winning the day in Schroeder’s court plaintiffs in large part argued McCrory’s sentiment.

But Big Meat ain’t giving up. No how, no way. Schroeder originally dismissed the case, writing the plaintiffs did not have standing because they had not been penalized by the PPA. Plaintiffs challenged that notion at the Fourth Circuit Court which ruled they had a “reasonable apprehension of prosecution.” And so the case went back to Schroeder who largely vacated the PPA.

One thing could happen and another thing will happen. The could: the North Carolina attorney general could appeal to the Fourth Circuit — but winning that ain’t likely. The will: Big Meat and their North Carolina legislative enablers will soon be back on the floor with their newest shiny attempt to circumvent the First Amendment.

Dave Dickey spent nearly 30 years at University of Illinois at Urbana-Champaign’s NPR member station WILL-AM 580. His weekly column for the Midwest Center covers agriculture and related issues including politics, government, environment and labor. Email him at [email protected].

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