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Milberg Pro Bono Work Helps Secure 1A Win in NC “Ag-Gag” Case

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March 13, 2023

by Brian Eckert

The U.S. Court of Appeals for the Fourth Circuit has ruled that provisions of North Carolina’s Property Protection Act are unconstitutional because they violate the First Amendment.

Milberg provided pro bono counsel for Public Justice in the case, with Partner Jeremy Williams from the firm’s Raleigh office arguing on behalf of a plaintiff group led by People for the Ethical Treatment of Animals (PETA).

“This is a big win,” said Senior Partner Dan Bryson. “The decision found the NC ‘ag-gag’ law unconstitutional. The law essentially prevented whistleblowers in agricultural scenarios without criminal repercussions.”

Case Background

North Carolina’s Property Protection Act, passed by the North Carolina General Assembly in 2015, contains provisions that seek to criminalize newsgathering activities, including undercover animal-cruelty investigations at agricultural facilities.

The law—one of many so-called “ag-gag” laws enacted by state legislatures—permits employers to sue activists and whistleblowers who collect data or documents or record images without permission.

Seeking to follow in the well-trodden footsteps of Upton Sinclair, PETA wishes to conduct undercover animal-cruelty investigations and publicize what they uncover.

PETA and other animal-rights groups challenged the constitutionality of the Property Protection Act in a 2016 lawsuit, claiming it imposes discriminatory speech restriction that endanger lawful newsgathering. In 2020, the U.S. District Court for the Middle District of North Carolina sided with the plaintiffs, ruling that all four of the provisions they opposed violate the First Amendment.

But the court did not find that the provisions were unconstitutional at all times and in all cases. This led to an appeal to the Fourth Circuit. Arguments were made on October 27, 2021 and the case was decided 2-1, in favor of the plaintiffs, on February 23, 2022.

The Court’s Ruling

The Fourth Circuit held that the North Carolina Property Protection Act is unconstitutional to the extent it restricts undercover investigations and other whistleblowing meant to inform the public. It also strongly indicated other sorts of whistleblowing will be protected.

“Seeking to follow in the well-trodden footsteps of Upton Sinclair, PETA wishes to conduct undercover animal-cruelty investigations and publicize what they uncover,” Judge Floyd wrote for the majority.

The right to gather information plays a distinctly acute role in journalism. Firsthand accounts, buttressed by video evidence, enhance accuracy and credibility in reporting and increase transparency and reader trust, allowing the press ‘to tell more complete and powerful stories.’

Notably, the opinion held that Food Lion—a case from 25 years ago against ABC for undercover reporting which has been used to say undercover investigations are not protected in the Fourth Circuit—is effectively a dead letter. It explained Food Lion never held investigations were unprotected, and even if it did, its reasoning has been overruled.

The opinion also held that each of the challenged provisions are not just subject to the First Amendment, but were passed to suppress speech critical of businesses, rendering them viewpoint discriminatory and subject to strict scrutiny—a test the defendants did not try to meet.

However, the court declined to prohibit North Carolina from enforcing potential applications of the law outside of newsgathering.

“Should posting a hidden camera in a CEO’s office—or her home—per se constitute protected expression?” wrote Judge Floyd. “How about photographing proprietary documents to tap into trade secrets, with no intent of creating a work of art? Recording private telephone conversations? For our purposes, it suffices to hold only that recording in the employer’s nonpublic areas as part of newsgathering constitutes protected speech.”

Milberg’s Pro Bono Practice

Milberg is committed to equal justice for all and supports many organizations that engage in pro bono causes.

Dan Bryson serves on the Executive Committee of Public Justice, a nationwide public interest law firm. He previously served as President of Public Justice and took on systemic oppression as the group’s leader.

Jeremy Williams is a member of Public Justice as well as State Ambassador for North Carolina. He is also on the Education Committee of the North Carolina Advocates of Justice.

Legal Aid of Tennessee recognized Milberg as its 2022 Pro Bono Firm of the Year for consistent financial support and work on conservatorships. Senior Partner Greg Coleman has been involved in many legal aid and pro bono projects in the Knoxville area.

Milberg has additionally given back to the community through organizations that include the Innocence Project, the Development School for Youth, the American Indian College Fund, Equal Justice Works, the UJA-Federation of New York, the Asian American Legal Defense and Education Fund, Network for Good, and Mobilization for Justice.

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