There is understandable concern within the livestock production community and processing industry that footage of production practices may be used to build public opinion against the accepted practices of their trade. One known purpose of so-called “ag gag” laws is to prevent animal rights organizations from directing an individual to infiltrate an animal agriculture operation as an employee of that operation – usually a swine, poultry, or dairy farm – to secretly record activities, which may then be used to publicize perceived animal cruelty and the like. Such laws variously impose criminal or civil penalties on farm employees who clandestinely gather imagery and may also hold accountable a third party (i.e., an animal rights organization) directing such activity. Ag gag laws have generally been challenged in federal courts as violations of free speech.
Early iterations of ag gag laws focused squarely on agricultural protection – such as Alabama’s 2002 Farm Animal, Crop, and Research Facilities Protection Act – in an era of bioterrorism fears. More recent laws – such as those passed in Arkansas and North Carolina – do not specifically target agricultural protection. Though initially dismissed, the challenge to Arkansas’ statute was revived in 2022 by the 8th Circuit Court of Appeals and remains under review.
North Carolina’s “ag gag” law – The Property Protection Act (N.C.G.S. 99A-1) – was recently tested before the U.S. Court of Appeals for the 4th Circuit, which limited the application of the statute but did not invalidate it. The NC Property Protection Act creates a right of action on behalf of employers against employees who, without permission, collect information by various means, including unattended recording devices, offering employers recoverable damages up to $5,000 per day, plus attorney’s fees. The Act also holds accountable those who intentionally direct, assist, compensate, or induce another person to trespass (i.e., animal rights organizations).
The 4th Circuit Court’s opinion, North Carolina v. PETA, illustrates how language in an ag gag statute can run afoul of U.S. constitutional protections on newsgathering and free speech, and declined to apply principles of common law trespass or an employee’s “duty of loyalty” to supersede free speech protections of employees and their newsgathering efforts. Because the NC law has not been tested, the Court limited the bar of its application only to the parties in the case (i.e., PETA and others), and declined to invalidate the law, adopting a wait and see approach to how it might be used in the future.
A more in-depth look at the Court’s opinion can be found in this article.
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