In The United States District Court
`
`For The Middle District of North Carolina
`
`Greensboro Division
`
`PEOPLE FOR THE ETHICAL TREATMENT
`
`OF ANIMALS, INC; CENTER FOR FOOD
`
`SAFETY; ANIMAL LEGAL DEFENSE
`
`FUND; FARM SANCTUARY; FOOD &
`
`WATER WATCH; and GOVERNMENT
`ACCOUNTABILITY PROJECT
`
`Plaintiffis
`'
`“ ’
`
`v
`
`'
`
`ROY COOPER, in his official capacity as
`
`Attorney General of North Carolina, and
`CAROL FOLT, in her official capacity as
`Chancellor of the University of North
`Carolina-Chapel Hill,
`
`
`
`
`Defendants.
`
`Case No.: 1 6-cv—25
`
`COMPLAINT FOR
`DECLARATORY AND
`
`INJUNCTIVE RELIEF
`CONCERNING THE
`
`Egfigggfiiégw 0F
`
`I.
`
`INTRODUCTION.
`
`1.
`
`Overriding the Governor’s veto, the North Carolina legislature enacted
`
`Session Law 2015-50 (codified at NC. Gen. Stat. § 99A—2), an “Anti—Sunshine Law”
`
`designed to deter whistleblowing regarding workplace activities by individuals who
`
`seek to inform the public about matters of public concern. The law attacks the core
`
`values embodied by the federal and state constitutional protections of speech and the
`
`press; it obstructs the federal and state right to petition; it violates the federal and state
`
`constitutional guarantees of equal protection and due process of the laws; and it is
`
`unconstitutionally vague. The law should be declared unconstitutional under the First
`
`Case 1:16-cv-00025-TDS-JEP Document 1 Filed 01/13/16 Page 1 of 58
`
`
`
`For The Middle District of North Carolina
`
`Greensboro Division
`
`PEOPLE FOR THE ETHICAL TREATMENT
`
`OF ANIMALS, INC; CENTER FOR FOOD
`
`SAFETY; ANIMAL LEGAL DEFENSE
`
`FUND; FARM SANCTUARY; FOOD &
`
`WATER WATCH; and GOVERNMENT
`ACCOUNTABILITY PROJECT
`
`Plaintiffis
`'
`“ ’
`
`v
`
`'
`
`ROY COOPER, in his official capacity as
`
`Attorney General of North Carolina, and
`CAROL FOLT, in her official capacity as
`Chancellor of the University of North
`Carolina-Chapel Hill,
`
`
`
`
`Defendants.
`
`Case No.: 1 6-cv—25
`
`COMPLAINT FOR
`DECLARATORY AND
`
`INJUNCTIVE RELIEF
`CONCERNING THE
`
`Egfigggfiiégw 0F
`
`I.
`
`INTRODUCTION.
`
`1.
`
`Overriding the Governor’s veto, the North Carolina legislature enacted
`
`Session Law 2015-50 (codified at NC. Gen. Stat. § 99A—2), an “Anti—Sunshine Law”
`
`designed to deter whistleblowing regarding workplace activities by individuals who
`
`seek to inform the public about matters of public concern. The law attacks the core
`
`values embodied by the federal and state constitutional protections of speech and the
`
`press; it obstructs the federal and state right to petition; it violates the federal and state
`
`constitutional guarantees of equal protection and due process of the laws; and it is
`
`unconstitutionally vague. The law should be declared unconstitutional under the First
`
`Case 1:16-cv-00025-TDS-JEP Document 1 Filed 01/13/16 Page 1 of 58
`
`
`
`and Fourteenth Amendments of the United States Constitution, and under Article I,
`
`Sections 12, 14, and 19 of the North Carolina Constitution, and Defendants should be
`
`enjoined from enforcing its provisions.
`
`2.
`
`The text of the Anti—Sunshine Law makes clear that the statute’s central
`
`targets are whistleblowers, such as investigative journalists and activists engaged in
`
`undercover investigations, who seek to share information with the public. Unlike a
`
`generally applicable statute that would create liability for all employees, the Anti-
`
`Sunshine Law only regulates five enumerated acts, which primarily involve the
`
`intentional collection of information that employers and property owners wish to keep
`
`from public view. The Anti-Sunshine Law is also focused on those who seek to share
`
`that information with the public. The law exempts from liability individuals who
`
`collect information and provide it to their superiors or government officials under
`
`certain state statutes, rather than releasing it to the public. As a result, the Anti-
`
`Sunshine Law is directed at those who set out to investigate employers’ and property
`
`owners’ conduct because they believe there is value in exposing employers’ and
`
`property owners’ unethical or illegal behavior to the disinfecting sunlight of public
`
`scrutiny.
`
`3.
`
`The Anti—Sunshine Law’s legislative history confirms that the statute’s aim
`
`is to keep whistleblowers from exposing employers’ and property owners’ hidden
`
`conduct to the public. In the words of one of the bill’s supporters, the law’s goal is to
`
`allow employers and property owners to engage in activities of public concern
`
`without fear of an “expose.”
`
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`
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`4.
`
`Because the Anti-Sunshine Law targets the gathering of information in
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`order to inform the public, it attacks “the core value” embodied by the federal and
`
`state constitutional protections of speech and the press, “[t]he public interest in having
`
`free and unhindered debate on matters of public importance.” Pickering v. Ba’. of
`
`Educ. ofTwp. High Sch. Dist. 205, 391 US. 563, 573 (1968). It is a content-based
`
`regulation of speech, which also discriminates based on the viewpoint of the speaker,
`
`a particularly “egregious form of content discrimination.” Rosenberger v. Rectors &
`
`Visitors of Univ. of Virginia, 515 US. 819, 829 (1995). It also targets and
`
`disproportionally burdens the press. Such infringements on speech or the press are
`
`presumptively unconstitutional, requiring the state to carry a significant burden in
`
`order to preserve the statute, which it cannot do here. Minneapolis Star & Tribune
`
`Co. v. Minnesota Comm ’r ofRevenue, 460 US. 575, 585 (1983). Further, the Anti-
`
`Sunshine Law is unconstitutionally overbroad. While Plaintiffs contend that the law
`
`cannot ever be constitutionally applied, even if it had some constitutional
`
`applications—and even if the law could be constitutionally applied to Plaintiffs—~the
`
`Anti-Sunshine Law’s unconstitutional applications substantially outweigh its
`
`constitutional ones and, as a result, the law must be struck down.
`
`5.
`
`Further, the Anti-Sunshine Law also interferes with citizens” ability “to
`
`express their ideas .
`
`.
`
`. and concerns to their government” and thus violates the right to
`
`petition afforded by the First Amendment of the United States Constitution, and
`
`Article 1, Section 12 of the North Carolina Constitution. Borough ofDuryea v.
`
`Guarnieri, 131 S. Ct. 2488, 2495 (2011). In fact, because the statute only carves out
`
`3
`
`Case 1:16-cv-00025-TDS-JEP Document 1 Filed 01/13/16 Page 3 of 58
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`
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`an exception for reporting employers’ or property owners’ activities under certain
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`state laws, it prohibits citizens reporting to their govcrnmcnt through other, statutorily
`
`prescribed channels. As a result, the law can only stand in the “most extreme
`
`circumstances,” a showing the state cannot make here. McDonald v. Smith, 472 US.
`
`479, 486 (1985) (Brennan, J. concurring).
`
`6.
`
`The Anti-Sunshine Law also violates the guarantees of equal protection and
`
`due process of laws provided for in the Fourteenth Amendment of the United States
`
`Constitution, and Article 1, Section 19 of the North Carolina Constitution. The
`
`statute’s legislative history reveals that the law was motivated by animus towards, and
`
`targeted at a particular class of individuals and interferes with their fundamental right
`
`of free speech. Therefore, at the least, the law is subject to strict scrutiny, placing the
`
`burden on the state to demonstrate the law’s constitutionality, which it cannot do. See
`
`Massachusetts Bd. ofRet. v. Murgz'a, 427 US. 307, 312 & n.3 (1976). Thus, the Anti-
`
`Sunshine Law cannot stand.
`
`7.
`
`Finally, the Anti-Sunshine Law is unconstitutionally vague under the First
`
`and Fourteenth Amendments of the United States Constitution, and Article 1, Sections
`
`14 and 19 of the North Carolina Constitution. The Anti-Sunshine Law is a quasi-
`
`criminal statute that interferes with speech, yet it fails to define a variety of key terms
`
`in § 99A22(b)(l) and § 99A-2(b)(2). In this manner, the Anti-Sunshine Law fails to
`
`provide due process and suppresses a substantial amount of constitutionally protected
`
`speech. Accordingly, §§ 99A-2(b)(l)—(b)(2) are unconstitutional.
`
`Case 1:16-cv-00025-TDS-JEP Document 1 Filed 01/13/16 Page 4 of 58
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`
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`8.
`
`Therefore, Plaintiffs ask the Court to declare the Anti-Sunshine Law
`
`unconstitutional under the First and Fourteenth Amendments to the United States
`
`Constitution, and Article 1, Sections 12, 14, and 19 of the North Carolina Constitution,
`
`and to enjoin Defendants from enforcing the statute so that Plaintiffs can continue to '
`
`engage in their constitutionally protected activities.
`
`II.
`
`JURISDICTION AND VENUE.
`
`9.
`
`This action arises under the United States Constitution and the laws of the
`
`United States, including 42 U.S.C. §§ 1983 and 1988. Therefore, this Court has
`
`jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C. § 1343.
`
`10.
`
`North Carolina law provides a cause of action against state officials for
`
`violations of the state constitution. State v. Petersz'lz'e, 432 S.E.2d 832, 841 (NC.
`
`1993).
`
`11.
`
`Pursuant to 28 U.S.C. § 1367 the Court may exercise supplemental
`
`jurisdiction over the claims arising under the North Carolina state constitution.
`
`12.
`
`This action also arises under the Court’s inherent equitable jurisdiction.
`
`13.
`
`This Court has authority to grant the declaratory and injunctive relief
`
`requested pursuant to 28 U.S.C. §§ 2201 and 2202, and Rules 57 and 65 of the
`
`Federal Rules of Civil Procedure, as well as the Court’s inherent equitable powers.
`
`l4.
`
`Venue is proper in the United States District Court for the Middle District
`
`of North Carolina pursuant to 28 U.S.C. § l391(b)(l) and (2).
`
`Case 1:16-cv-00025-TDS-JEP Document 1 Filed 01/13/16 Page 5 of 58
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`
`
`III.
`
`PARTIES.
`
`A. Plaintiffs.
`
`15.
`
`Plaintiff PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS,
`
`INC. (“PETA”) is a Virginia non-stock corporation and animal protection charity
`
`exempt from taxation pursuant to Section 501(c)(3) of the Internal Revenue Code.
`
`PETA is dedicated to protecting animals from abuse, neglect, and cruelty, and
`
`undertakes these efforts through public education, undercover investigations,
`
`research, animal rescue, legislation, special events, celebrity involvement, protest
`
`campaigns, and lawsuits to enforce laws enacted to protect animals.
`
`16.
`
`As explained in further detail below, PETA has conducted undercover
`
`investigations in North Carolina and wishes to continue to conduct such investigations
`
`in the future, but it has been deterred from doing so for fear of being sued for damages
`
`under the Anti—Sunshine Law.
`
`17.
`
`PETA’s first undercover investigationwthe 1981 investigation of Dr.
`
`Edward Taub’s monkey testing laboratory in Silver Spring, Maryland—resulted in the
`
`nation’s first arrest and criminal conviction of an animal experimenter for cruelty to
`
`animals. PETA’S experience establishes that confronting the public with evidence of
`
`animal cruelty is its most effective form of advocacy, because it can build support to
`
`ensure existing laws are enforced, advance additional legal protections, and encourage
`
`entities to adopt more humane practices. Among other tools that it employs to expose
`
`and educate the public about animal cruelty, PETA publishes a magazine, Animal
`
`Times, produces a blog with approximately a half—dozen posts per day, publishes
`
`6
`
`Case 1:16-cv-00025-TDS-JEP Document 1 Filed 01/13/16 Page 6 of 58
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`
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`videos that receive hundreds of thousands of views, and drafts op-eds, letters to the
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`editor, and articles for publication. PETA employs dozens of people to engage in this
`
`work and it draws substantially from the information gathered through its undercover
`
`investigations of private and governmental operations. Without access to information
`
`from undercover investigations, PETA is unable to engage in its desired form of
`
`speech to further its mission.
`
`18. Moreover, because of the Anti-Sunshine Law, in order to engage in its
`
`undercover investigations, to advance its mission, PETA would have to accept the risk
`
`of liability. Typically, PETA’s investigators, at PETA’s behest, seek out jobs at
`
`facilities PETA believes are engaged in acts of animal cruelty. Those investigators
`
`use their real names to obtain at-will positions in the facilities, merely omitting from
`
`their applications their current employment. While employed at the facilities,
`
`investigators perform all of the functions they are assigned or instructed to engage in
`
`to the best of their abilities. The investigators also seek to gather information from
`
`non-public areas regarding the facilities’ treatment of animals. Once they have
`
`collected sufficient information, the investigators leave their at-will positions in good
`
`standing. PETA presents evidence of illegal conduct to the proper federal, state, and
`
`local authorities. PETA’s mission and advocacy also involves releasing evidence of
`
`the unethical or illegal treatment of animals to the public through news articles, blog
`
`posts, videos, and/or press releases.
`
`19.
`
`Through publically exposing the unethical or illegal conduct that employers
`
`have kept from public view, PETA’s undercover investigations, including
`
`7
`
`Case 1:16-cv-00025-TDS-JEP Document 1 Filed 01/13/16 Page 7 of 58
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`
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`investigations in North Carolina, have resulted in significant policy changes and
`
`enforcement actions that have protected animals and changed the way the public
`
`thinks about animal rights. For instance, one PETA investigator obtained
`
`employment in the kennels of Professional Laboratory and Research Services, near
`
`Raleigh, North Carolina. There, in the private areas, where the animals were kept,
`
`tested on, and “treated” by staff, the investigator documented the kennel testing
`
`insecticides and other chemicals on the dogs and cats at the behest of Bayer, Eli Lilly,
`
`Novartis, Schering-Plough (now Merck), Sergeant’s, Wellmark, and Merial. Through
`
`his access to the non-public areas, the investigator was also able to record staff
`
`abusing the animals. PETA filed a complaint with USDA and released this
`
`information to the public. The public pressure this campaign brought to bear resulted
`
`in the facility surrendering 200 dogs and 50 cats and the first—ever felony cruelty
`
`charges against laboratory workers for their abuse and neglect.1
`
`20.
`
`Another PETA investigator obtained employment at a North Carolina hog
`
`farm that supplies Smithfield Foods and, while working in non—public areas, recorded
`
`workers dragging the pigs by their ears and snouts, and supervisors describing how
`
`they beat the animals. PETA released this video to the public and, as a direct result of
`
`I See Professional Laboratory and Research Services Undercover Investigation,
`http://www.peta.org/features/professional-laboratory-research-services/.
`
`8
`
`Case 1:16-cv-00025-TDS-JEP Document 1 Filed 01/13/16 Page 8 of 58
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`
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`the attention generated by that video, one of the workers was charged with six counts
`
`of animal cruelty.2
`
`21.
`
`PETA has similarly conducted undercover investigations of state-run
`
`facilities in North Carolina, which, if they were conducted today, would force PETA
`
`to accept the risk of liability under the Anti-Sunshine Law. From 2001-2003 PETA
`
`conducted investigations of animal laboratories at the University of North Carolina-
`
`Chapel Hill (“UNC-Chapel Hill”). Two PETA investigators secured at-will jobs as
`
`animal care technicians in the UNC-Chapel Hill animal testing laboratories,
`
`performing all of the functions of animal care technicians. In the non-public areas of
`
`the facilities, PETA’s investigators gathered information, including making
`
`recordings, showing that the workers disregarded animal care protocols and
`
`government orders, for instance, cutting off the heads of rat pups while the pups were
`
`still conscious and in violation of protocol. PETA’s investigators tried to report these
`
`violations to university personnel, but other employees in the lab discarded and hid
`
`evidence, and a supervisor instructed PETA’s investigators not to tell him about the
`
`violations. PETA publicized its findings and filed a report with the National Institutes
`
`of Health, which confirmed PETA’s allegations.3
`
`22.
`
`On information and belief, the unethical and illegal treatment of animals
`
`continues at these UNC-Chapel Hill laboratories. As part of its mission, PETA would
`
`2 See Charges Filed After Investigation Reveals Torture ofPigs,
`http://www.peta.org/action/action-alerts/charges-f1led-investigation-reveals-
`torture—pigs/.
`3 See PETA Investigations Reveal Taxpayer—Fundea’ Torture at UNC Laboratory,
`http ://www.peta. org/features/unc/.
`
`Case 1:16-cv-00025-TDS-JEP Document 1 Filed 01/13/16 Page 9 of 58
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`
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`conduct another undercover investigation of these facilities, instructing one of its
`
`investigators to secure employment at the facilities in order to record activities and
`
`collect data so that PETA could then release that information to the public, expose the
`
`behavior, and build public pressure for change. However, PETA fears liability under
`
`the Anti-Sunshine Law. Therefore, because of the chill created by the Anti-Sunshine
`
`Law, PETA has chosen not to undertake this investigation of the UNC-Chapel Hill
`
`laboratories and has been prevented from engaging in its chosen form of speech and
`
`advocacy.
`
`23.
`
`Plaintiff CENTER FOR FOOD SAFETY (“CFS”) is a 501(c)(3) non-profit
`
`public interest and environmental advocacy organization dedicated to ensuring the
`
`public’s right to know how their food is produced and protecting human health and
`
`the environment by curbing the use of harmful food production technologies,
`
`including industrial animal agriculture, and by promoting organic and other forms of
`
`sustainable agriculture. Accordingly, CF S utilizes regulatory actions, citizen
`
`engagement, legislation, and, when necessary, litigation, to promote transparency and
`
`accountability in industrial agriculture. CFS is a membership organization with over
`
`700,000 members nationwide, including 14,663 members in North Carolina.
`
`24.
`
`To accomplish its mission, CFS disseminates to government agencies,
`
`legislatures, and the general public a wide array of informational materials addressing
`
`the harmful effects of industrial agriculture. These materialswwhich are distributed
`
`in North Carolina and elsewhere—include news articles, scientific and policy reports,
`
`books, legal briefs, press releases, action alerts, and fact sheets. In the course of the
`
`10
`
`Case 1:16-cv-00025-TDS-JEP Document 1 Filed 01/13/16 Page 10 of 58
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`
`
`Anti-Sunshine Law’s passage, veto, and subsequent re—passage, CF S created three
`
`webpages and sent six “action alerts” to its North Carolina members urging them to
`
`contact their state legislators and the Governor to take actions against the bill.
`
`Because the Anti-Sunshine Law was originally passed, was vetoed, and then the veto
`
`was overridden, CF S expended more of its highly limited resources to stop the bill’s
`
`ultimate passage than it typically does on pending legislation. CF 8’ expenditures on
`
`the Anti-Sunshine Law harmed CFS’ ability to carry out its core mission. CFS had to
`
`divert resources away from its core activities to work against the legislation, as the
`
`Anti-Sunshine Law will prevent the creation and dissemination of information on
`
`which CFS relies to inform the public about how its food is produced and to prevent
`
`harmful food production technologies.
`
`25.
`
`Indeed, CFS relies on and uses information obtained by whistleblowers,
`
`such as undercover investigations of industrial agriculture operations, like those
`
`conducted by Plaintiffs, for the informational, legal, and advocacy materials it
`
`develops and distributes. For example, in 2014 CFS utilized information from
`
`numerous undercover investigations at egg-production facilities that employ battery
`
`cages to formulate and substantiate its arguments in an amicus brief in support of
`
`California’s ban on the sale of eggs from such facilities.4 The brief demonstrated the
`
`association between foodborne illness and the use of battery cages, as revealed by
`
`undercover investigations that documented unsanitary and inhumane conditions in
`
`4 See Amici Curiae Br. in Support of Defs.’ and Def.-Intervenors’ Mots. to
`Dismiss, Missouri v. Harris, 58 F. Supp. 3d 1059 (ED. Cal. 2014) (No. 2:14—cv—
`00341-KJM), 2014 WL 3726702.
`
`11
`
`Case 1:16-cv-00025-TDS-JEP Document 1 Filed 01/13/16 Page 11 of 58
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`
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`battery cage facilities. CFS cited to the same investigations in letters to members of
`
`the Massachusetts state senate urging them to support legislation to prevent farm
`
`animal cruelty.5 in 2015, CFS utilized information from undercover investigations of
`
`veal calf facilities in formulating administrative comments to the United States
`
`Department of Agriculture (“USDA”), Food Safety & Inspection Service (“FSIS”),
`
`urging the agency to amend requirements for the disposition of non—ambulatory
`
`disabled veal calves under the Humane Methods of Slaughter Act (“HMSA”).6 Most
`
`recently, CFS has used information from undercover investigations at the
`
`Hallmark/Westland slaughter plant in a letter to FSIS in support of a petition to
`
`improve enforcement of the HMSA. At the time of the cited investigation, Hallmark
`
`was the second-largest supplier of beef to the USDA Agricultural Marketing Service,
`
`which purchases beef for distribution to the public under various social services
`
`programs. Based on the information revealed by the investigations, F SIS amended its
`
`HMSA regulations.
`
`26.
`
`Because of the chilling effect of the Anti—Sunshine Law, CFS will be
`
`hindered in earying out its mission by being denied aee‘s* to information uncovered
`
`by Whistleblowers that it would use to inform its members, the public, and the
`
`government about food safety and animal welfare issues, including violations of
`
`federal law. Likewise, CFS’s members will be harmed by being denied access to such
`
`information through CFS. CFS would like to continue to rely on information from
`
`5 See Letter from Rebeeca Spector, West Coast Director, Ctr. for Food Safety, to
`Members of the Joint Comm. On the Judiciary (June 2014) (on file with author).
`6 See Comments, Aug 12 2015, Docket No. FSIS-2014-0020.
`
`12
`
`Case 1:16-cv-00025-TDS-JEP Document 1 Filed 01/13/16 Page 12 of 58
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`
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`undercover investigations in its advocacy. By discouraging whistleblowing, and
`
`particularly the public distribution of the information gathered by such sources, on
`
`which CFS relies to carry out its mission, the Anti-Sunshine Law has prevented and
`
`will prevent CFS from engaging in its desired form of speech. Moreover, CFS is
`
`concerned that its future use of materials derived from undercover investigations
`
`could subject it to liability under the Anti-Sunshine Law.
`
`27.
`
`Plaintiff ANIMAL LEGAL DEFENSE FUND (“ALDF”) is a national
`
`501(c)(3) non-profit animal protection organization founded in 1979 that uses
`
`education, public outreach, investigations, legislation, and litigation to protect the
`
`lives and advance the interests of animals, including those animals who are raised for
`
`food, used in biomedical research, exhibited to the public, or bred as pets. ALDF’s
`
`work is supported by more than 110,000 members across the country, many of which
`
`live in North Carolina. Among the materials that ALDF produces to advance its work
`
`are a quarterly publication, The Animals ’ Advocate, articles, press releases, reports,
`
`and a blog.
`
`28.
`
`As explained in further detail below, ALDF and its agents have conducted
`
`undercover investigations at animal facilities around the country, including at least a
`
`dozen in North Carolina. ALDF wishes to continue to conduct such investigations in
`
`North Carolina, but it has been deterred from doing so for fear of being sued for
`
`damages under the Anti-Sunshine Law.
`
`29.
`
`Among the tactics ALDF employs in its undercover investigations are for
`
`an ALDF-employee to obtain employment with an organization that ALDF believes is
`
`13
`
`Case 1:16-cv-00025-TDS-JEP Document 1 Filed 01/13/16 Page 13 of 58
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`
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`engaged in the unethical or illegal treatment of animals. In non-public areas of an
`
`organization, the investigator then collects information and/or makes recordings
`
`regarding the organization’s conduct. ALDF investigators may also be instructed to
`
`leave recording devices unattended to capture images and sound over a longer
`
`duration, such as to document the severity of repetitive pathological stereotypies in
`
`captive wild animals, or the length of time for which a sick or injured animal goes
`
`without veterinary care. In order to advance its mission, ALDF releases the evidence
`
`uncovered during its investigations to the public.
`
`30.
`
`ALDF would like to conduct undercover investigations in North Carolina
`
`and has an investigative team capable of doing so. ALDF’s Manager of
`
`Investigations has personally conducted undercover employment—based investigations
`
`in North Carolina of the kind prohibited by the Anti-Sunshine Law. ALDF has
`
`recruited specific investigators who are ready, willing, and able to conduct undercover
`
`investigations at animal facilities in North Carolina. ALDF has spent several
`
`thousand dollars to run radio advertisements in North Carolina in an effort to recruit
`
`111114le investig-“tors. ALDF has also created a comprehensive list of animal facilities
`
`including farms, research facilities, puppy mills, and animal hoarders in North
`
`Carolina, which are locations for potential investigations. This list includes a number
`
`of governmental facilities. ALDF has even collected employment applications at
`
`some of these facilities.
`
`In short, ALDF has done everything but violate the Anti-
`
`Sunshine Law. It has refrained from taking the final step to actualize an investigation,
`
`14
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`Case 1:16-cv-00025-TDS-JEP Document 1 Filed 01/13/16 Page 14 of 58
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`
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`for fear of liability it cannot afford. In other words, the Anti-Sunshine Law has
`
`chilled ALDF’s ability to engage in constitutionally protected advocacy.
`
`31. Moreover, ALDF’s core mission of improving the lives of animals is
`
`fundamentally impaired by the Anti-Sunshine Law. ALDF uses investigations to
`
`support its litigation and outreach, and the Anti-Sunshine Law directly impedes these
`
`efforts by diminishing the supply of such investigations. To take an example, ALDF
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`participated in the legal effort to shut down All Creatures Great and Small, an animal
`
`hoarder masquerading as a rescue shelter in Hendersonville, North Carolina. A PETA
`
`undercover investigation at All Creatures Great and Small provided indisputable
`
`evidence that hundreds of dogs and cats were suffering in filthy, deplorable
`
`conditions, many with untreated wounds and diseases. Ultimately the facility was
`
`shut down and hundreds of animals were rescued, a result that would not have
`
`occurred if not for photo and video evidence collected by PETA’s undercover
`
`investigator who spent several months employed at the facility. That very same
`
`investigator now leads ALDF’s investigations program. Because the Anti—Sunshine
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`Law impedes ALDF’s access to evidence of animal cruelty, it frustrates ALDF’s
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`mission of using the legal system to advance the interests of animals.
`
`32.
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`Further still, ALDF relies on the information gathered through its own and
`
`other organizations’ undercover investigations, like those conducted by Plaintiff
`
`PETA, for the materials that it produces. Indeed, ALDF has specific and definite
`
`plans to produce additional materials building on and citing to the information
`
`generated through undercover investigations. However, because of the Anti-Sunshine
`
`15
`
`Case 1:16-cv-00025-TDS-JEP Document 1 Filed 01/13/16 Page 15 of 58
`
`
`
`Law’s chilling effect on investigations by Whistleblowers, and the public distribution
`
`of information gathered by such individuals, on which ADLF relies to carry out its
`
`mission, the Anti-Sunshine Law has prevented and will prevent ADLF from engaging
`
`in its desired form of speech. Moreover, ALDF fears that simply its use of
`
`information from such whistleblowers could subject it to liability under the Anti-
`
`Sunshine Law.
`
`33.
`
`To combat these frustrations of its mission, ALDF has diverted significant
`
`resources to prevent the spread of unconstitutional laws like and including the one
`
`enacted in North Carolina. ALDF was extremely active in the legislative campaign to
`
`prevent the passage of the Anti—Sunshine Law, then in the campaign to convince
`
`Governor McCrory to veto the bill, and finally in the campaign against the veto
`
`override. ALDF used social media and action alerts to urge its members and
`
`supporters in North Carolina to contact their legislators to oppose the Anti—Sunshine
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`Law. These expenditures to counteract the unconstitutional Violations of various
`
`persons’ civil rights constitute a harmful diversion of ALDF’s very limited resources
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`spent furthering ALDF’s core mission of directly protecting the lives and advancing
`
`the interests of animals through the legal system. ALDF, however, is obligated to
`
`divert its resources in order to prevent the harm that “Ag—Gag” laws, like and
`
`including the one enacted in North Carolina, pose to ALDF’s core mission.
`
`34.
`
`Plaintiff FARM SANCTUARY is a non-profit 501(c)(3) animal-advocacy
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`organization with over 250,000 constituents nationwide, including constituents in
`
`16
`
`Case 1:16-cv-00025-TDS-JEP Document 1 Filed 01/13/16 Page 16 of 58
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`
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`North Carolina. Farm Sanctuary focuses its efforts exclusively on farm animals and is
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`the largest farm animal rescue and protection organization in the United States. Core
`
`to its mission is protecting farm animals from cruelty and encouraging a new public
`
`awareness about farm animals through education and media outreach. Its education
`
`efforts and media outreach include public appearances, maintaining a blog, producing
`
`literature and videos, issuing press statements, and serving as a source for journalists
`
`and media.
`
`35.
`
`To further its mission, Farm Sanctuary has conducted farm animal
`
`investigations, in which its investigators have either entered onto properties or
`
`obtained employment in order to access non—public areas and gather evidence, and/or
`
`record images of animal cruelty. After obtaining this information, Farm Sanctuary
`
`turned over evidence of illegal activities to proper authorities, and released the
`
`information to the public. Its investigation helped form the foundation for federal
`
`intervention to stop the inhumane and unsanitary slaughter of animals. And showing
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`the public images of the mistreatment of farm animals furthers Farm Sanctuary’s
`
`mission to raise awareness.
`
`36. Moreover, Farm Sanctuary’s education efforts and media outreach rely on
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`the information gathered by its own and other organizations’ undercover
`
`investigations, like those conducted by Plaintiffs PETA and ALDF. Farm Sanctuary
`
`has relied on the information gathered through undercover investigations in its
`
`campaigns—targeting the public and legislatures—to stop the inhumane confinement
`
`of animals, the inhumane transportation and marketing of downed animals, and the
`
`17
`
`Case 1:16-cv-00025-TDS-JEP Document 1 Filed 01/13/16 Page 17 of 58
`
`
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`inhumane treatment of ducks in the production of foie gras. Farm Sanctuary would
`
`like to continue to rely on information from undercover investigations in its advocacy.
`
`However, because of the Anti»Sunshine Law’s chilling effect on investigations by
`
`whistleblowers, and the public distribution of information gathered by such
`
`individuals, on which Farm Sanctuary relies to carry out its mission, the Anti—
`
`Sunshine Law has prevented and will prevent Farm Sanctuary from engaging in its
`
`desired form of speech. Moreover, Farm Sanctuary fears that its use of information
`
`from such whistleblowers could subject it to liability under the Anti—Sunshine Law.
`
`37.
`
`Plaintiff FOOD & WATER WATCH (“FWW”) is a is a 501(c)(3) non-
`
`profit organization that advocates for common-sense policies that will result in
`
`healthy, safe food, and access to safe and affordable drinking water, FWW is a
`
`membership organization with close to 70,000 members nationwide, including 2,000
`
`members in North Carolina. FWW also maintains a presence in North Carolina with
`
`organizing staff, legal and communications support staff, and a supporter email list of
`
`approximately 22,000 people. FWW’s objective is to ensure that Americans consume
`.
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`
`to take charge of where their food comes from. Accordingly, FWW advocates
`
`extensively on issues surrounding industrial agricultural systems, and fracking, and to
`
`ensure clean, accessible, and safe water resources. FWW fears that the Anti-Sunshine
`
`Law will inhibit and interfere with FWW’s ability to carry out its mission and serve
`
`its members’ and supporters” needs.
`
`18
`
`Case 1:16-cv-00025-TDS-JEP Document 1 Filed 01/13/16 Page 18 of 58
`
`
`
`38.
`
`In particular, FWW accomplishes its ends through engagement with the
`
`public and the government, regulatory actions, and litigation. In order to educate the
`
`public and the government about the risks presented by current food production
`
`methods and water contamination, FWW maintains a blog, produces news articles,
`
`press releases, and reports, and issues fact sheets and action alerts. It releases and
`
`places these materials in North Carolina and elsewhere. Among the material these
`
`publications rely on is information gathered by public whistleblowers concerning
`
`factory farms, food processing plants, and polluting facilities. Because of the Anti-
`
`Sunshine Law’s chilling effect on investigations by whistleblowers, and the public
`
`distribution of information gathered by such individuals, on which FWW relies to
`
`carry out its mission, the Anti-Sunshine Law has prevented and will prevent FWW
`
`from engaging in its desired form of speech.
`
`39.
`
`For instance, at present, FWW is the lead plaintiff in ongoing litigation
`
`concerning the new poultry processing inspection rules issued by USDA. Food &
`
`Water Watch, et a]. v. T0m Vilsack, et 61]., No. 14-01547 (D.D.C.). Dur
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