IN THE UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
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`1:16CV25
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`PEOPLE FOR THE ETHICAL
`TREATMENT OF ANIMALS, INC.;
`CENTER FOR FOOD SAFETY; ANIMAL
`LEGAL DEFENSE FUND; FARM
`SANCTUARY; FOOD & WATER WATCH;
`GOVERNMENT ACCOUNTABILITY
`PROJECT; FARM FORWARD; and
`AMERICAN SOCIETY FOR THE
`PREVENTION OF CRUELTY TO
`ANIMALS,
`
` Plaintiffs,
`
` v.
`
`JOSH STEIN, in his official
`capacity as Attorney General
`of North Carolina, and DR.
`KEVIN GUSKIEWICZ, in his
`official capacity as
`Chancellor of the University
`of North Carolina-Chapel Hill,
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` Defendants,
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` And
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`NORTH CAROLINA FARM BUREAU
`FEDERATION, INC.,
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` Intervenor-Defendant.
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`MEMORANDUM OPINION AND ORDER
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`THOMAS D. SCHROEDER, Chief District Judge.
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`Plaintiffs People for the Ethical Treatment of Animals, Inc.
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`(“PETA”), Center for Food Safety (“CFS”), Animal Legal Defense
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`Fund (“ALDF”), Farm Sanctuary, Food & Water Watch (“FWW”),
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`Government Accountability Project (“GAP”), Farm Forward, and the
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`American Society for the Prevention of Cruelty to Animals (“ASPCA”)
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`seek to permanently enjoin North Carolina Attorney General, Josh
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`Stein, and University of North Carolina-Chapel Hill Chancellor,
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`Dr. Kevin Guskiewicz, from enforcing subsections of North Carolina
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`General Statute § 99A-2 as unconstitutional under the First and
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`Fourteenth Amendments to the United States Constitution. (Doc. 21
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`¶ 142.)
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`Before the court are cross-motions for summary judgment filed
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`by Plaintiffs (Doc. 98) and Defendants (Doc. 107), as well as
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`Intervenor-Defendant North Carolina Farm Bureau Federation, Inc.
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`(“Intervenor”) (Doc. 109). With leave of court, amici Reporters
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`Committee for Freedom of the Press and twenty-one other
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`organizations1 have filed a brief in support of Plaintiffs’ motion
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`for summary judgment. (Doc. 106.) The motions have been fully
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`briefed, and the court held oral argument on February 6, 2020.
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`For the reasons set forth below, the court will grant in part and
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`deny in part the parties’ motions for summary judgment, finding
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`that the challenged provisions of the law fail to pass muster under
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`1 Amici are as follows: American Society of News Editors; The Associated
`Press Media Editors; Association of Alternative Newsmedia; Capitol
`Broadcasting Company, Inc.; First Look Media Works, Inc.; Forbes Media
`LLC; Freedom of the Press Foundation; Gannett Co., Inc.; GateHouse Media;
`The International Documentary Association; The Investigative Reporting
`Workshop; The National Press Club; The National Press Club Journalism
`Institute; The National Press Photographers Association; The North
`Carolina Press Association; The Online News Association; POLITICO; Radio
`Television Digital News Association; Reporters Without Borders; Society
`of Professional Journalists; and The Tully Center for Free Speech. (Doc.
`106 at 25-30.)
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`
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`2
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`the First Amendment - two provisions fail facially, and the
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`remaining two provisions fail as applied to Plaintiffs.
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`I.
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`BACKGROUND
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`A.
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`Facts
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`
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`The facts, either not in dispute or viewed in the light most
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`favorable to the non-moving parties in the cross-motions for
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`summary judgment, establish the following:
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`
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`On June 3, 2015, over then-Governor Patrick McCrory’s veto,2
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`the North Carolina General Assembly passed the North Carolina
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`Property Protection Act, 2015 N.C. Sess. Laws 50, codified at N.C.
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`Gen. Stat. § 99A-2 (“Property Protection Act” or “Act”). (Doc. 21
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`¶ 1; Doc. 108 at 4.) The Act amended current law that provides a
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`civil remedy for interference with certain property rights by
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`creating a civil cause of action for the owner or operator of a
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`premises as follows:
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`(a) Any person who intentionally gains access to the
`nonpublic areas of another’s premises and engages in an
`act that exceeds the person’s authority to enter those
`areas is liable to the owner or operator of the premises
`for any damages sustained. For the purposes of this
`section, “nonpublic areas” shall mean those areas not
`accessible to or not intended to be accessed by the
`general public.
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`
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`2 In his veto statement, Governor McCrory stated: “While I support the
`purpose of this bill, I believe it does not adequately protect or give
`clear guidance to honest employees who uncover criminal activity. I am
`concerned that subjecting these employees to potential civil penalties
`will create an environment that discourages them from reporting illegal
`activities.” (Doc. 99-8 at 4.)
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`3
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`N.C. Gen. Stat. § 99A-2(a). Under the law, “an act that exceeds
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`the person’s authority” within the meaning of section (a) “is any
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`of the following”:
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`(1) An employee who enters the nonpublic areas of an
`employer’s premises for a reason other than a bona
`fide intent of seeking or holding employment or
`doing business with the employer and thereafter
`without authorization captures or removes the
`employer’s data, paper, records, or any other
`documents and uses the information to breach the
`person’s duty of loyalty to the employer[;]
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`(2) An employee who intentionally enters the nonpublic
`areas of an employer’s premises for a reason other
`than a bona fide intent of seeking or holding
`employment or doing business with the employer and
`thereafter without authorization records images or
`sound occurring within an employer’s premises and
`uses the recording to breach the person’s duty of
`loyalty to the employer[;]
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`(3) Knowingly or intentionally placing on the
`employer’s premises an unattended camera or
`electronic surveillance device and using that
`device to record images or data[;]
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`(4) Conspiring in organized retail theft, as defined in
`Article 16A of Chapter 14 of the General Statutes[;
`or,]
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`(5) An act that substantially interferes with the
`ownership or possession of real property.
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`Id. § 99A-2(b). “Any person who intentionally directs, assists,
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`compensates, or induces another person to violate this section”
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`can be held jointly liable with the employee or actor. Id. § 99A-
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`2(c).
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`
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`Any party who prevails in an action brought under the Act can
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`recover equitable relief, compensatory damages, costs and
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`4
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`attorneys’ fees, as well as “[e]xemplary damages as otherwise
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`allowed by State or federal law in the amount of five thousand
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`dollars ($5,000) for each day, or portion thereof, that a defendant
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`has acted in violation of subsection (a).” Id. § 99A-2(d). The
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`Act further provides that nothing in it shall be construed to
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`“diminish the protections provided to employees under Article 21
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`of Chapter 95 [Retaliatory Employment Discrimination] or Article
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`14 of Chapter 126 [Protection for Reporting Improper Government
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`Activities] of the General Statutes” or “limit any other remedy
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`available at common law or provided by the general Statutes.” Id.
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`§ 99A-2(e), (g).
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`
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`Plaintiffs are eight organizations who either “engage in
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`employment-based undercover investigations to document and expose
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`animal abuse” (Doc. 99 at 2) or “use[] information from
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`whistleblowers and investigators in their advocacy” (id. at 7).
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`PETA says it has identified animal testing laboratories at the
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`University of North Carolina-Chapel Hill that it would like to
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`investigate through the use of an undercover investigator, but it
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`has refrained from doing so out of fear and the “threat of
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`exemplary damages and other civil penalties under [the Act].”
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`(Doc. 100-1 ¶¶ 17-18, 24.) Similarly, ALDF says it is prepared to
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`conduct undercover investigations at state-owned facilities in
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`North Carolina, but those preparations were “thwarted when the
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`[Act] passed.” (Doc. 100-2 ¶ 8.) Both PETA and ALDF represent
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`5
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`that if the Act were held unconstitutional, they would resume their
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`undercover investigations. The remaining Plaintiffs have each
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`indicated that the Act’s effect on PETA and ALDF has negatively
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`impacted the mission and goals of their organizations. Plaintiffs
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`charge that the Act was passed specifically to ward off undercover
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`investigations of facilities and farms in which animal testing or
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`processing takes place. By creating a strong disincentive for
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`PETA and ALDF to conduct undercover investigations, the remaining
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`Plaintiffs claim, the Act has obstructed their information stream
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`and prevents them from publishing photographs and reports that are
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`central to their missions. (Docs. 101-1 ¶¶ 6, 8, 17-18; 101-2
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`¶¶ 4-5, 10-11; 101-3 ¶¶ 5-6, 13-14; 101-4 ¶¶ 5-6, 8, 11-12; 101-5
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`¶¶ 5-6, 8, 10-11; 101-6 ¶¶ 7-8, 13-14.)
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`B.
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`Procedural History
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`Plaintiffs initiated this pre-enforcement action on
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`January 13, 2016 (Doc. 1) and filed an amended complaint on
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`February 25, 2016 (Doc. 21). Raising both facial and as-applied
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`challenges, they claim the Act stifles their ability to investigate
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`North Carolina employers for illegal or unethical conduct and
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`restricts the flow of information those investigations provide, in
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`violation of the First (Count I) and Fourteenth (Count II)
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`Amendments to the United States Constitution and provisions of the
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`North Carolina Constitution (Free Speech under Art. I, § 14 (Count
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`III); Right to Petition under Art. I, § 12 (Count IV); and Equal
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`6
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`Protection under Art. 1, § 19 (Count V)). On April 4, 2016,
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`Defendants moved to dismiss the amended complaint on three grounds:
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`Eleventh Amendment State sovereign immunity, standing, and on the
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`merits. (Doc. 30.) In a memorandum opinion, this court found
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`that Plaintiffs failed to allege sufficient facts to demonstrate
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`standing and granted Defendants’ motion to dismiss. (Doc. 49 at
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`37.)
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`Plaintiffs appealed this court’s judgment, and in a June 5,
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`2018 opinion the Fourth Circuit held that Plaintiffs “sufficiently
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`alleged, at least at [the motion to dismiss] stage of the
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`litigation, an injury-in-fact sufficient to meet the first prong
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`of the First Amendment standing framework” and reversed this
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`court’s judgment. PETA v. Stein, 737 F. App’x 122, 131 (4th Cir.
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`2018) (per curiam). On remand, this court held argument on the
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`remainder of Defendants’ motion to dismiss, granting it in part
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`and denying it in part, leaving only Plaintiffs’ claims under the
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`First Amendment (Count I) and Fourteenth Amendment (Count II) to
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`the United States Constitution. (Doc. 73.)
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`Thereafter, North Carolina Farm Bureau Federation, Inc. – a
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`nonprofit organization dedicated to representing the interests of
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`North Carolina farmers - moved to intervene as a Defendant pursuant
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`to Federal Rule of Civil Procedure 24 and Local Rule 7.3 (Doc.
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`82), and Plaintiffs filed an unopposed motion to join the UNC
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`System president and the UNC Board of Governors as Defendants (Doc.
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`7
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`87). The court granted North Carolina Farm Bureau Federation’s
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`motion but denied Plaintiffs’ motion for joinder. (Doc. 92 at 11.)
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`Plaintiffs, Defendants, and Intervenor each moved for summary
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`judgment on September 3, 2019, based on a record developed largely
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`of affidavits, and the court heard argument on February 6, 2020.
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`The motions are thus ready for decision.
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`II. ANALYSIS
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`Defendants first renew their challenge to this court’s
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`subject matter jurisdiction. (Docs. 108 at 9 n.2; 115 at 3-6.)
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`Plaintiffs assert that the court has subject matter jurisdiction
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`under 28 U.S.C. §§ 1331 and 1343 (Doc. 21 ¶ 9) and that venue is
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`proper (id. ¶ 14).
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`A.
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`Standing
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`Plaintiffs, relying on the Fourth Circuit’s prior opinion in
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`this case, PETA, 737 F. App’x 122, contend that they have set out
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`sufficient facts, supported by affidavits, to establish standing.
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`(Doc. 99 at 8-10.) Defendants disagree. (Doc. 115 at 3.)
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`Article III of the United States Constitution limits the
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`jurisdiction of federal courts to deciding cases or controversies.
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`U.S. Const. art. III, § 2, cl. 1. To satisfy this case-or-
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`controversy requirement, a plaintiff must establish that its claim
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`meets three requirements of Article III standing:
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`(1) An injury-in-fact (i.e., a concrete and
`particularized invasion of a legally protected
`interest); (2) causation (i.e., a fairly traceable
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`
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`8
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`connection between the alleged injury in fact and the
`alleged
`conduct
`of
`the
`defendant);
`and
`(3)
`redressability (i.e., it is likely and not merely
`speculative that the plaintiff’s injury will be remedied
`by the relief plaintiff seeks in bringing suit).
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`Beck v. McDonald, 848 F.3d 262, 269 (4th Cir. 2017) (quoting David
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`v. Alphin, 704 F.3d 327, 333 (4th Cir. 2013)).
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`
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`“[E]ach element [of standing] must be supported in the same
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`way as any other matter on which the plaintiff bears the burden of
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`proof, i.e., with the manner and degree of evidence required at
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`the successive stages of the litigation.” Id. at 270 (quoting
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`Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)). At the
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`summary judgment stage, a plaintiff must “set forth by affidavit
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`or other evidence specific facts, which for purposes of the summary
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`judgment motion will be taken to be true.” Id. (quoting Lujan,
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`504 U.S. at 561).
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`
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`Plaintiffs have met this burden, having set forth by
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`affidavit, the veracity of which has not been challenged, specific
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`facts which, taken as true, establish Article III standing.
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`1.
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`Injury-in-Fact
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`Defendants contend that Plaintiffs’ basis for a chill on the
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`exercise of their rights is “objectively unreasonable based on the
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`record” and that their fears are “purely hypothetical,
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`speculative, and conjectural, and do not rise to an injury-in-
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`fact.” (Doc. 115 at 4.) Plaintiffs argue that following the
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`Fourth Circuit’s ruling, to show injury-in-fact they must merely
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`9
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`establish that they have conducted undercover investigations in
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`the past to uncover unethical or illegal treatment of animals and
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`disseminate that information and that they are prepared to proceed
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`with further investigations but are chilled from doing so because
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`they fear liability under the Act. (Doc. 99 at 9.)
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`“To establish injury in fact, a plaintiff must show that he
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`or she suffered an invasion of a legally protected interest that
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`is concrete and particularized and actual or imminent, not
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`conjectural or hypothetical.” Beck, 848 F.3d at 270 (internal
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`quotation marks omitted) (quoting Spokeo, Inc. v. Robins, 136 S.
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`Ct. 1540, 1548 (2016)). In the First Amendment context, the
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`“standing requirements are somewhat relaxed,” Cooksey v. Futrell,
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`721 F.3d 226, 235 (4th Cir. 2013), and plaintiffs can satisfy the
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`injury-in-fact requirement by “showing that [the challenged
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`statute] ha[s] an objectively reasonable chilling effect on the
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`exercise of their rights.” PETA, 737 F. App’x at 129 (internal
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`quotation marks omitted) (quoting Cooksey, 721 F.3d at 229). “To
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`decide the objective reasonableness of the claimed chilling effect
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`from the Act, the court evaluates whether there is a credible
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`threat of enforcement against the plaintiff.” Id. “Government
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`action will be sufficiently chilling when it is likely to deter a
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`person of ordinary firmness from the exercise of First Amendment
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`rights. Id. (quoting Cooksey, 721 F.3d at 236).
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`In addressing the issue of injury-in-fact on appeal, the
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`10
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`Fourth Circuit held that Plaintiffs “sufficiently allege[d] an
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`injury-in-fact,” stating:
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`Plaintiffs’ alleged injury is not just the imminent
`threat of a civil lawsuit, which would only occur if
`they go forward with their plans to investigate in the
`nonpublic
`areas
`of
`a
`state
`employer’s
`premises and Defendants choose to file suit against
`them. Rather, Plaintiffs[’] alleged injury for standing
`purposes is that they have refrained from carrying out
`their planned investigations based on their reasonable
`and well-founded fear that they will be subjected to
`significant exemplary damages under the Act if they move
`forward at all.
`
`Id. at 129, 131 (emphasis in original) (internal quotation marks
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`omitted). In reaching its holding, the court explained that
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`Plaintiffs alleged (1) “an intention to engage in a course of
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`conduct arguably affected with a constitutional interest,” (2) “a
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`credible threat that the Act will be enforced against them if they
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`proceed with their plans,” and (3) “that they have refrained from
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`proceeding for fear of being subjected to the severe civil remedies
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`provided for in the Act.” Id. at 129-130 (internal quotation marks
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`omitted).
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`
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`By its terms, the Act appears to prohibit Plaintiffs from
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`conducting undercover investigations and “subject them to civil
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`liability, including severe exemplary damages.” Id. at 130. The
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`actions in which Plaintiffs wish to engage, which are the same as
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`those before enactment of the Act, could be targeted by the
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`Defendants. Because a civil action could be brought under the Act
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`to target not only the investigations in which Plaintiffs wish to
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`11
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`engage, but also the use of the information gathered from these
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`investigations, the Fourth Circuit found there is a credible threat
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`the Act will be enforced against them. Id. Therefore, to show
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`injury-in-fact, Plaintiffs must establish that (1) they have
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`engaged in or supported undercover investigations in the past for
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`the purpose of gathering and disseminating information or have
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`relied on undercover investigations to disseminate information,
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`and (2) that they have refrained from doing so out of fear of
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`liability under the Act.
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`At this stage of the litigation, Plaintiffs cannot rely on
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`“mere allegations” but must establish specific facts by evidence.
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`Beck, 848 F.3d at 270 (citation and internal quotation marks
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`omitted). A declaration from an individual authorized to make
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`statements on behalf of the organization has been filed by each of
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`the eight Plaintiffs. (Docs. 100-1 [PETA], 100-2 [ALDF], 101-1
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`[ASPCA], 101-2 [CFS], 101-3 [Farm Forward], 101-4 [Farm
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`Sanctuary], 101-5 [FWW], 101-6 [GAP].) Both PETA and ALDF have
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`declared that they have engaged in undercover investigations at
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`facilities in North Carolina in the past and are not willing to
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`proceed with their planned investigations out of fear of liability
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`under the Act. (Docs. 100-1 ¶¶ 4, 6-18, 21-25; 100-2 ¶¶ 7-10, 12-
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`15.) The ASPCA has declared that the Act has both stopped
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`investigations, which prevents the production of materials they
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`rely on, and discouraged them from funding investigations in North
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`12
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`Carolina out of fear of liability. (Doc. 101-1 ¶¶ 6, 8, 17-19.)
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`Finally, CFS, Farm Forward, Farm Sanctuary, FWW, and GAP have all
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`declared that they rely on information from whistleblowers and
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`undercover investigators to produce content central to their
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`organizations’ missions, and the Act is preventing that
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`information from reaching them. (Docs. 101-2 ¶¶ 4-5, 10-11; 101-
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`3 ¶¶ 5-6, 13-14; 101-4 ¶¶ 5-6, 8, 11-12; 101-5 ¶¶ 5-6, 8, 10-11;
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`101-6 ¶¶ 7-8, 13-14.)
`
`Plaintiffs have set out specific facts to establish an injury
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`in fact.
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`2.
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`Causation and Redressability
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`Defendants argue that Plaintiffs “have not presented, nor can
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`they, any evidence showing that the Defendants have threatened any
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`kind of action against Plaintiffs or that they are likely to
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`enforce the Act against them.” (Doc. 115 at 5.) Plaintiffs argue
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`that in the interlocutory appeal the Fourth Circuit found that
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`“these Defendants must either initiate or prosecute [a suit],
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`making [Plaintiffs’] chill traceable to and redress[a]ble against
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`Defendants.” (Doc. 99 at 9.)
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`The burden on Plaintiffs is to show (1) “a causal connection
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`between the injury and the conduct complained of, such that the
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`injury is fairly traceable to the defendant’s actions” and (2) “a
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`likelihood that the injury will be redressed by a favorable
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`decision.” PETA, 737 F. App’x. at 128 (citation and internal
`
`
`
`13
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`quotation marks omitted). As the Fourth Circuit noted, the injury
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`here is that Plaintiffs “have refrained from carrying out their
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`planned investigations based on their reasonable and well-founded
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`fear that they will be subjected to significant exemplary damages
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`under the Act if they move forward” with their plans to investigate
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`in areas prohibited by the Act. Id. at 131. In its opinion, the
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`Fourth Circuit stated that Plaintiffs “plausibly alleged that
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`Defendants are the officials who are empowered to initiate or file
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`suits under the Act if Plaintiffs carry out their investigations,
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`and neither the UNC Chancellor nor the Attorney General have
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`disavowed enforcement if Plaintiffs proceed with their plans.”
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`Id. at 130-31 (citation and internal quotation marks omitted).3
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`They further found that “an order preventing these Defendants from
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`exercising their powers to initiate or bring a lawsuit under the
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`Act would seem to be sufficient to quell Plaintiffs’ fear of
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`liability.” Id. at 132.
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`As set forth in Plaintiffs’ declarations, the ability of
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`Defendants to bring a civil action under the Act and subject
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`Plaintiffs to civil liability and exemplary damages is the cause
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`of Plaintiffs’ injury - the prevention from moving forward with
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`undercover investigations and disseminating information. As the
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`3 This court had disagreed, noting that it was some 13 to 15 years ago
`that PETA last conducted an undercover investigation of a UNC facility
`and that the State never threatened or instituted any legal action in
`connection with it. (Doc. 49 at 5-6, 28.)
`
`
`
`14
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`Fourth Circuit found already, barring Defendants from bringing
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`suit would redress the injury. Id. Thus, Plaintiffs have set
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`forth sufficient facts to establish both causation and
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`redressability and consequently have standing.
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`B.
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`First Amendment Claims
`
`Plaintiffs move for summary judgment on their remaining
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`claims, arguing that subsections (b)(1), (b)(2), (b)(3) and (b)(5)
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`of the Act violate the First Amendment because they fail the
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`requisite scrutiny and are unconstitutionally overbroad.4 (Doc.
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`98 at 1-2.) Plaintiffs seek to strike the Act both facially and
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`as applied to them. Defendants and Intervenor dispute both
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`assertions, arguing that the Act regulates wrongful conduct and is
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`not overbroad, and that any prohibited speech is not protected
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`speech. (Docs. 115 at 6, 16-18; 121 at 7-8, 17-19.) Further,
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`they contend that if found to regulate protected speech, the Act
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`is content- and viewpoint-neutral and can withstand intermediate
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`scrutiny. (Docs. 115 at 13-15; 121 at 14-17.)
`
`1.
`
`Standard of Review
`
`Summary judgment is appropriate where the pleadings,
`
`affidavits, and other proper discovery materials demonstrate that
`
`
`4 At oral argument, Plaintiffs acknowledged that N.C. Gen. Stat. § 99A-
`2(c) is not unconstitutional unless, in their view, it is used to create
`joint liability for violations of the challenged provisions, subsections
`(b)(1) through (b)(3) or (b)(5). Plaintiffs do not challenge § 99A-2(e)
`but instead argue that subsection (e) is further evidence that the Act
`is directed at First Amendment protected interests. (Doc. 99 at 11-13.)
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`
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`no genuine dispute as to any material fact exists and the moving
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`party is entitled to judgment as a matter of law. Fed. R. Civ. P.
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`56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The
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`party seeking summary judgment bears the burden of initially
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`demonstrating the absence of a genuine dispute as to any material
`
`fact. Celotex, 477 U.S. at 323.
`
`“When faced with cross-motions for summary judgment, the
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`court must review each motion separately on its own merits to
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`determine whether either of the parties deserves judgment as a
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`matter of law.” Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th
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`Cir. 2003) (citation and internal quotation marks omitted). In
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`considering each motion, the court must “resolve all factual
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`disputes and any competing, rational inferences in the light most
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`favorable to the party opposing that motion.” Id. (citation and
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`internal quotation marks omitted). There is no issue for trial
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`unless sufficient evidence favoring the non-moving party exists
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`for a reasonable factfinder to return a verdict in its favor.
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`Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 257 (1986).
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`The court is faced with cross-motions for summary judgment.
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`No party contends that there are material facts in dispute, and
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`all agreed at oral argument that summary judgment is an appropriate
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`disposition in this case.
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`2.
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`State Action
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`The First Amendment guarantees that “Congress shall make no
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`
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`law . . . abridging the freedom of speech.” U.S. Const. amend. I.
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`When considering an action brought under the First Amendment, “it
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`must be remembered that the First and Fourteenth Amendments
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`safeguard the rights of free speech and assembly by limitations on
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`state action, not on action by the owner of private property used
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`nondiscriminatorily for private purposes only.” Lloyd Corp. v.
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`Tanner, 407 U.S. 551, 567 (1972) (emphasis added). But while the
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`Free Speech Clause prohibits only state action, “[t]he test is not
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`the form in which state power has been applied but, whatever the
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`form, whether such power has in fact been exercised.” N.Y. Times
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`Co. v. Sullivan, 376 U.S. 254, 265 (1964). In fact, “sometimes
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`the state can censor just as effectively through legal forms that
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`are private as it can through ones that are public.”5 Overbey v.
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`Mayor of Baltimore, 930 F.3d 215, 224 (4th Cir. 2019) (quoting
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`Daniel J. Solove & Neil M. Richards, Rethinking Free Speech and
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`Civil Liability, 109 Colum. L. Rev. 1650, 1668 (2009)).
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`Defendants rightly note that the present case differs from
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`numerous other similar lawsuits across the country that challenge
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`restrictions on undercover investigations, particularly of
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`agricultural operations.6 As far as the court can discern, nearly
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`5 It is for this reason that libel laws, although enforced by private
`parties, remain subject to First Amendment scrutiny. See, e.g., N.Y.
`Times, 376 U.S. at 268-69.
`
` 6
`
` Litigation against so-called “Ag-Gag” laws have been pursued
`nationwide, including in Arkansas, ALDF v. Vaught, No. 4:19-cv-00442-
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`
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`all other similar laws impose criminal liability while the Property
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`Protection Act provides a civil cause of action for damages. But
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`while the Act operates in the private sphere, it is state action
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`to the extent the State has identified speech (or in some cases,
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`conduct which can include speech) it wishes to allow to be
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`proscribed and has empowered private parties to enforce the
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`prohibition. Cohen v. Cowles Media Co., 501 U.S. 663, 668 (1991)
`
`(finding in breach of contract dispute that “the application of
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`state rules of law in state courts in a manner alleged to restrict
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`First Amendment freedoms constitutes ‘state action’ under the
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`Fourteenth Amendment”). “Calling a speech restriction a ‘property
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`right’ . . . doesn’t make it any less a speech restriction, and it
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`doesn’t make it constitutionally permissible.” Eugene Volokh,
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`Freedom of Speech and Information Privacy: The Troubling
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`Implications of a Right to Stop People from Speaking About You, 52
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`Stan. L. Rev. 1049, 1063 (2000).
`
`
`JM, Doc. 51 (E.D. Ark. Feb. 14, 2020) (granting the defendants’ motion
`to dismiss where plaintiffs did not allege facts sufficient to establish
`injury in fact), Idaho, ALDF v. Wasden, 878 F.3d 1184 (9th Cir. 2018)
`(holding that Idaho’s statute prohibiting a person from making an
`unauthorized audio or video recording of an agricultural facility’s
`operations violated the First Amendment), Iowa, ALDF v. Reynolds, 353
`F. Supp. 3d 812 (S.D. Iowa 2019) (finding Iowa’s “Ag-Gag” law facially
`unconstitutional and granting plaintiffs’ motion for summary judgment),
`Kansas, ALDF v. Kelly, No. 18-2657-KHV, 2020 WL 362626, *1 (D. Kan. Jan.
`22, 2020) (finding that the challenged provisions of the Kansas law
`violated the First Amendment and granting in part plaintiffs’ motion for
`summary judgment), and Utah, ALDF v. Herbert, 263 F. Supp. 3d 1193 (D.
`Utah 2017) (finding Utah’s law unconstitutional under the First Amendment
`and granting plaintiffs’ motion for summary judgment).
`
`
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`In the present case, moreover, Plaintiffs have strategically
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`targeted a State entity that would enforce the Act through State
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`actors. As the Fourth Circuit stated:
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`It appears that [the] Chancellor . . . would be the
`state official tasked with either initiating or
`requesting approval for a lawsuit under the Act if PETA
`carried out its planned investigation of UNC-Chapel
`Hill. And Attorney General Stein would, at a minimum,
`be the state official charged with representing any
`targeted state agency that chose to sue under the Act.
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`PETA, 737 F. App’x at 132. State action is therefore present
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`through the actions of the UNC Chancellor and the North Carolina
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`Attorney General. This provides a sufficient basis to challenge
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`the Property Protection Act under the First Amendment as applied
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`to the States through the Fourteenth Amendment.
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`3.
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`Facial versus As-Applied Challenges
`
`Plaintiffs challenge the Act both facially and as applied to
`
`them. “[T]he distinction between facial and as-applied challenges
`
`is not so well defined that it has some automatic effect or that
`
`it must always control the pleadings and disposition in every case
`
`involving a constitutional challenge.” Citizens United v. Fed.
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`Election Comm’n, 558 U.S. 310, 331 (2010). Rather, “[t]he
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`difference between a facial challenge and an as-applied challenge
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`lies in the scope of the constitutional inquiry.” Educ. Media Co.
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`at Va. Tech, Inc. v. Insley, 731 F.3d 291, 298 n.5 (4th Cir. 2013).
`
`In distinguishing between facial and as-applied challenges, the
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`Fourth Circuit has noted:
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`
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`Under a facial challenge, a plaintiff may sustain its
`burden in one of two ways. First, a plaintiff asserting
`a facial challenge may demonstrate that no set of
`circumstances exists under which the law would be valid,
`or that the law lacks any plainly legitimate sweep.
`Second, a plaintiff asserting a facial challenge may
`also prevail if he or she show[s] that the law is
`overbroad because a substantial number of its
`applications are unconstitutional, judged in relation to
`the statute’s plainly legitimate sweep. Under either
`scenario, a court considering a facial challenge is to
`assess the constitutionality of the challenged law
`without regard to its impact on the plaintiff asserting
`the facial challenge. In contrast, an as-applied
`challenge is based on a developed factual record and the
`application of a statute to a specific person[.]
`
`Id. (internal citations and quotation marks omitted). Further,
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`facial challenges “are disfavored fo