On March 1, 2021, the First Amendment Clinic filed an amicus brief on behalf of 18 legal scholars challenging North Carolina’s Property Protection Act, which the brief noted “prohibits vast swaths of protected speech based on information obtained from the nonpublic premises of a property owner.” Filed in the U.S. Court of Appeals for the Fourth Circuit in PETA v. Stein, No. 20-1776 (L), the brief urges the court to declare the Act unconstitutional under the First Amendment because it fails to survive heightened scrutiny and is substantially overbroad.
Extending far beyond similar laws in other states that apply only to agricultural enterprises (so called “ag-gag” statutes), the North Carolina Act empowers all property owners of any kind to sue any person who “exceeds [their] authority to enter the nonpublic areas of another’s premises” by:
(1) capturing information (e.g., photographing or note-taking) and then using it against the interest of the property owner;
(2) recording images or sounds and then using the recording against the interest of the property owner;
(3) recording images or data via an unattended camera or electronic surveillance device; or
(4) any act that “substantially interferes with the ownership or possession of real property.”
The Act effectively arms the owners of all commercial and non-commercial property, and all privately-owned and government property, with the powerful weapons of civil liability and monetary damages to brandish against anyone who documents and discloses the property owner’s malfeasance, or who assists or facilitates another person in doing so.
If allowed to stand, 99A-2 will greatly muffle, if not silence, undercover investigators, whistleblowers, concerned employees, and persons seeking to comply with multiple federal and state-law reporting schemes, while allowing all manner of abuses – e.g., animal welfare, labor, environmental, to name a few – to persist with greatly reduced fear of public exposure. This is a disastrous, upside-down result for First Amendment freedoms as well as for general public policy.
Written by Clinic Director Clare Norins, Mark L. Bailey (2L), and Michael Sloman (3L), the brief calls on the Fourth Circuit to strike down the Act as facially invalid and overbroad.
The brief was written on behalf of the following 18 amici:
- Enrique Armijo, Associate Dean for Academic Affairs and Professor at Elon University’s School of Law
- Jane Bambauer, Professor of Law at the University of Arizona’s James E. Rogers College of Law
- Erwin Chemerinsky, Dean & Professor of Law at the University of California’s Berkeley School of Law
- Alan Chen, Professor of Law at the University of Denver’s Sturm College of Law
- Thomas P. Crocker, Professor of Law at the University of South Carolina School of Law
- Eric M. Fink, Associate Professor of Law at Elon University’s School of Law
- G.S. Hans, Assistant (now Associate) Clinical Professor of Law at Vanderbilt University Law School
- Thomas Kadri, Assistant Professor of Law at the University of Georgia School of Law
- Heidi Kitrosser, Professor of Law at the University of Minnesota Law School
- Gregg P. Leslie, Professor of Practice and Executive Director of the First Amendment Clinic at Arizona State University’s Sandra Day O’Connor College of Law
- Nicole Ligon, Supervising Attorney in the First Amendment Clinic and Lecturing Fellow at Duke Law School
- Sarah Ludington, Clinical Professor of Law and Director of the First Amendment Clinic at Duke Law School
- Gregory P. Magarian, Professor of Law at Washington University in St. Louis School of Law
- Jonathan Peters, Professor of Law & Professor of Journalism and Mass Communication at the University of Georgia’s School of Law and Grady College
- Jeffrey M. Shaman, Professor of Law Emeritus at DePaul University College of Law
- Rodney A. Smolla, Dean & Professor of Law at Widener University’s Delaware Law School
- Joseph Thai, Professor of Law at the University of Oklahoma College of Law
- Sonja R. West, Brumby Distinguished Professor in First Amendment Law at the University of Georgia School of Law