By Leisa Boley Hellwarth
Remember the old adage: not deciding is deciding? That describes the actions of the US Supreme Court in October regarding a North Carolina case, Stein v. People for the Ethical Treatment of Animals. This matter is commonly known as the PETA undercover recording case.
On June 3, 2015, over then Governor McCory’s veto, the North Carolina General Assembly passed the North Carolina Property Protection Act, which amended current law that provides a civil remedy for the interference with certain property rights by creating a civil cause of action for the owner or operator of the premises. In essence, North Carolina strengthened their “ag gag” law to offer civil protections to farm owners and operators when encountering undercover animal rights workers. North Carolina described the Act as protecting property owners from damages resulting from individuals acting in excess of the scope of permissible access and conduct granted to them.
The Act was enacted in response to a dispute between Food Lion and ABC News in North Carolina in the late 1990s. The grocery-store chain sued the news network after two of its reporters posed as Food Lion employees and used hidden cameras and microphones to record in nonpublic areas for a news segment on unsafe food-handling practices. The US Court of Appeals for the Fourth Circuit ruled in favor of Food Lion, although the North Carolina Supreme Court later undid a part of that ruling.
Seeking to codify the Fourth Circuit’s decision, the state legislature passed the Act which allows an employer to sue for money damages any employee who “without authorization records images or sound occurring within” the nonpublic areas of the employer’s private property and “uses the recording to breach the person’s duty of loyalty to the employer.”
PETA initiated a pre-enforcement action in the US District Court for the Middle District of North Carolina on Jan. 13, 2016 and filed an amended complaint on Feb. 25, 2016. Raising both facial and as-applied challenges, PETA claims the Act stifles their ability to investigate North Carolina employers for illegal or unethical conduct and restricts the flow of information those investigations provide, in violation of the First and Fourteenth Amendments to the US Constitution and provisions of the North Carolina Constitution.
The court ultimately invalidated much of the law. The court reasoned that the recording prohibition was a content-based restriction on speech because it targets speech critical of an employer’s business, and that it therefore triggers a high level of First Amendment scrutiny—a bar that, the court concluded, the law could not pass.
The Fourth Circuit upheld that ruling, in part. It rejected PETA’s contention that the law is always unconstitutional, theorizing that the prohibition could be used in a number of ways consistent with the First Amendment. However, it also rejected the state’s contention that the law does not violate the First Amendment because it does not target speech, but instead applies to all kinds of conduct, including trespass and theft.
“Laws cast in broad terms can restrict speech as much as laws that single it out,” the majority wrote. At least as applied to newsgathering efforts by PETA and other groups, the appeals court concluded, the recording an is unconstitutional.
North Carolina Attorney General Josh Stein, a named Defendant, petitioned the US Supreme Court to grant review and reverse the Fourth Circuit’s decision. He argued that the courts of appeals are divided over whether and when unauthorized recordings on nonpublic property are constitutionally protected speech. He also asserted that the Fourth Circuit’s decision is wrong on the merits. The Farm Bureau Federation of North Carolina filed a companion petition urging the justices to review the Fourth Circuit’s ruling and detailed that the law is a valid exercise of the state’s power to protect property and business interests.
On Oct. 23, 2023, the US Supreme Court denied the petition. The decision of the appellate court stands. Part of the Act is upheld. Recording audio or video in non-public farm areas in North Carolina, however, is a protected newsgathering activity under the First Amendment and remains law.
The decision not to hear the petition resulted in an affirmation of the ruling by the appellate court. Not deciding is deciding, even in the law.