Seven animal cruelty prevention organizations won a four-year battle Friday against the Attorney General of North Carolina and the Chancellor of the University of North Carolina at Chapel Hill. The opinion held that portions of the North Carolina Property Protection Act violated the First Amendment’s protection of the right to free speech.
The plaintiffs included People for the Ethical Treatment of Animals (PETA) and the Animal Defense Fund. The Act generally provides grounds for damages if a person, under the pretext of seeking bona fide employment, enters an employer’s worksite in order to record or photograph information to disseminate to the outside public.
The opinion, written by Chief District Judge Thomas D. Schroeder of the Middle District of North Carolina, focused on the provisions of the Act which allow an injured party to receive compensatory damages and daily punitive damages of $5,000 when a person “knowingly or intentionally plac[ed] on the employer’s premises an unattended camera or electronic surveillance device” to either simply “record images or data” without the employer’s authorization or to record then use the recording to “breach a person’s duty of loyalty to the employer.”
The plaintiffs, who would often investigate labs or processing plants using undercover investigators who planted hidden video cameras, stated the Act violated the First Amendment for the provisions sought to prohibit the collection and dissemination of their recordings solely because it contained content evidencing animal cruelty. In reply, the defendants asserted that the provisions simply barred the conduct of collecting and disseminating information recognized as speech and that even if said conduct was proper speech that the First Amendment failed to protect speech that only existed subsequent to the committing of a criminal act, in this case trespassing.
The court ruled against the defendants, stating that while the plaintiffs “enjoy no special status” to avoid the criminal consequences of trespass laws, that the defendants’ “ attempt to categorize image capture and recording following a trespass…as unprotected speech rests on a misreading of the law.” The court further examined precedent to confirm the plaintiffs’ assertions that the acts of “taking and capturing a picture,” “making an audio or audiovisual recording,” and/or disseminating said recording/photograph are all included “within the First Amendment’s guarantee of speech.”
The court then moved to an analysis of what legal standard, strict or intermediate scrutiny, must be used to determine whether the statute abridged the protected conduct in violation of the Constitution. The court reasoned that while strict scrutiny may be the appropriate test, that even under the more generous test of intermediate scrutiny, the provisions still failed to pass constitutional muster. Intermediate scrutiny holds that a statute shall be unconstitutional under the First Amendment if said statute infringes upon protected speech absent the state proving that the relevant statute is “narrowly tailored to serve a significant government interest and leaves open ample alternative channels of communication.”
The court concluded by stating that the provisions are unconstitutional because while the Act furthers the significant government interest in the protection of property, the state failed to provide evidence that the provisions were narrowly tailored to said interest. Narrow tailoring, held the court, required the defendants to prove that “it seriously undertook to address the problem with less intrusive tools readily available to it, and [demonstrating] that such alternative measures…would fail to achieve the government’s interests, not simply that the chosen route was easier.” Absent proof to the contrary, the defendants failed the test of intermediate scrutiny as “there is no indication in the record that property protection under North Carolina’s existing trespass law was unsuccessful.”
The plaintiffs were represented by a variety of counsel, including Public Justice, Animal Legal Defense Fund, Whitfield Bryson & Mason, and the Law Office of Matthew Strugar.