The End of Whistleblowing in North Carolina? A Brief Examination of North Carolina’s Property Protection Act

By Roy Jacobs, Staff Member (Vol. 16)

These rats were nuisances, and the packers would put poisoned bread out for them; they would die, and then rats, bread, and meat would go into the hoppers together.  Upton Sinclair, The Jungle

These were the stakes when Upton Sinclair, after weeks of undercover research in the meatpacking industry, published The Jungle in 1906. The descriptions of unsanitary working conditions and animal cruelty inspired the passage of legislation relating to food quality and production. Over a century later, activists still model undercover investigations after this blueprint. While advanced technology has made documenting the conditions on factory farms easier, potential whistleblowers in the U.S. must now worry about violating “Ag-Gag” laws.

What is an Ag-Gag law? Imagine you are an animal rights activist who secures employment on a dairy farm in order to uncover any animal abuse that may be committed there. You do not reveal your affiliation because the farm would not hire you otherwise, and it will not matter if you do not uncover any abuse. While there, some of your co-workers put a chain around a cow’s neck and drag the cow across a concrete floor using a tractor. You record a video of the incident and release it, hoping it will at least result in criminal charges for those who perpetrated the abuse and in well-deserved negative publicity for the industry. However, you discover that you have been charged with the crime of “Interference with Agricultural Production” because you gained access to the facility through misrepresentation and failed to secure the owner’s consent before recording on the premises.

It was an incident much like this one that lead to Idaho’s passage of an “Ag-Gag” law codified at I.C. § 18-7042. However, this law, and other “Ag-Gag” laws across the country have been found unconstitutional due to their facial First Amendment implications. This has led to speculation that North Carolina’s “Ag-Gag” law, The Property Protection Act, may soon be overturned. The Act is considered by some critics to be the worst “Ag-gag” law in the country. While it implicates even more protected speech than previously overturned “Ag-Gag” statutes, a recent challenge to the law in PETA v. Stein was dismissed due to the unique structure of this law.

First Amendment Implications of The Property Protection Act

The Property Protection Act targets the same elements of typical “Ag-gag” legislation, mainly: (1) gaining access to premises through misrepresentation, and (2) recording without consent of the owner. The Act makes its first divergence in its scope. Previous “Ag-gag” legislation earned its moniker due to its focus on industrial agriculture facilities. The Property Protection Act has gone further by simply applying to “the nonpublic areas of an employer’s premises”.

When the bill appeared on his desk, it was vetoed by former Governor Pat McCrory, who believed that it did not provide enough protections for legitimate whistleblowers and that employees would be discouraged from reporting illegal activity. For example, the AARP pointed out that under this law, a nursing home worker could be liable for documenting elder abuse. Despite opposition, the bill overcame the veto and became law in 2016, just months after an animal rights group released a video of an employee at a North Carolina poultry farm throwing, kicking, and stomping on chickens.

The bill’s sponsor, Rep. Szoka, believes these complaints are unfounded and that employees could still report issues to the proper authorities, but that the proper authorities are “not the media and not special interest organizations.” While he made assurances that the law would not harm long-term employees who discover wrongdoing at work, the law makes no such distinction among employees. Worse, the law writes out any discretion on the part of the government in its application.

So Why Is The Property Protection Act Still Law?

The biggest difference between North Carolina’s Property Protection Act and typical “Ag-gag” legislation is that the North Carolina law creates a civil cause of action for business owners as opposed to a criminal penalty for violators. Courts typically have relaxed standing requirements for establishing an injury when a law’s constitutionality is challenged; plaintiffs are not required to undergo a criminal prosecution to seek relief; and a credible threat of prosecution under a law is enough for a cognizable injury.

Unfortunately, courts have been stopped short of applying the same reasoning to the possibility of a civil suit between citizens. This was precisely the reason why the challenge to the Property Protection Act in PETA v. Stein was dismissed. Unlike a threat of criminal prosecution, the threat of a lawsuit was proclaimed “too speculative” by the court. While an appeal has been filed, a favorable outcome for the plaintiffs seems unlikely.

This scenario was likely contemplated by the drafters of the legislation. The creation of private tort remedies against otherwise constitutional activity has found alarming success in other contexts, and “Ag-gag” laws across the country had been overturned prior to the Act’s passage. The Act has been seemingly insulated from any pre-enforcement challenges to its constitutionality. Meanwhile, the Act continues to chill the speech of those who may be too worried about large civil penalties and legal fees to risk blowing the whistle.

How Should Activists and Workers in North Carolina Proceed?

The law will almost certainly survive any facial challenges to its constitutionality due to a lack of standing. There is still a possibility that anyone sued under the law could successfully argue that such a suit violates his or her First Amendment rights, but the possibility for massive civil liability may prove too much for potential whistleblowers. Most do not care to know how the sausage is made. In North Carolina, we may never find out.