North Carolina to pay $885,000 in attorney fees after unsuccessfully defending ‘ag-gag’ case • NC Newsline

Lawyers for the North Carolina Attorney General’s Office tried three times to convince a federal court that the state’s “gag” law should stand.

They lost in the United States District Court, which ruled that the law violated the constitution.

They lost in the Fourth Circuit Court of Appeals, which affirmed the lower court’s ruling.

They asked the United States Supreme Court to hear the case, but it refused.

The state will now pay nearly $885,000 in attorneys’ fees to plaintiffs, including the ASPCA, the Government Accountability Project and Food & Water Watch, who successfully argued that the gag rule went against the First Amendment. Two national law firms, FarmSTAND and Public Justice, and the Raleigh firm Whitfield Bryson were among those representing the plaintiffs.

“It didn’t have to be this way,” the plaintiffs said in a joint statement. “This news should serve as a serious warning to other states advocating or considering passing an Ag-Gag or Anti-Sunshine law: defend the interests of big ag companies to the detriment of the health, safety and civil liberties of their citizens. , and “We will decide to do it at taxpayers’ expense.”

As Newsline previously reported, in 2015, the state legislature passed the Property Protection Act. It allowed courts to impose civil penalties of $5,000 per day on employees who documented alleged wrongdoing (in video, audio or written work) in non-public areas of a company and then passed that information on to anyone other than the employer or authorities. The language of the law was broad enough that people who “induced” others to document wrongdoing could also be implicated and fined.

Shortly after the bill became law, eight environmental and animal welfare groups sued the state and Kevin Guskiewicz, then chancellor of UNC-Chapel Hill, over the law. (UNC-Chapel Hill was named because it operates research laboratories that use animals.)

The North Carolina Attorney General’s Office referred questions about the case, including from what fund attorney fees would be paid, to UNC-Chapel Hill. A UNC spokesperson said the university needed time to review the plaintiffs’ announcement.

In 2020, a federal district court judge determined that, as an act of news gathering, the distribution of the undercover material was constitutionally protected, as was the act itself of documenting and creating the material.

In 2023, the Fourth Circuit Court of Appeals, in a 2-1 decision, upheld the lower court’s decision. And because North Carolina’s ag-gag rule criminalized only the documentation and distribution of negative material, it regulated speech based on content, which violates the First Amendment, the appeals court ruled.

The status of gag laws in the U.S. (Map courtesy of the Center for Food Safety; data current as of February 2023)

Although the law was aimed at people documenting animal abuse by corporations and private farms, the law was written in a way that it could have applied to any employee, including:

  • Law enforcement officers who documented abuses committed by other officers (but who did not trust their supervisors to act) could also have been penalized if that information had been passed to outside parties.
  • Workers at nursing homes or meatpacking plants who wanted to document health practices during COVID-19 and pass the photos or videos to the media could have been penalized.

The North Carolina measure was inspired by legislation (the Animal and Ecological Terrorism Act) drafted in 2003 by the American Legislative Exchange Council, a conservative lobbying organization that drafts bills that states can then adopt or amend. According to ALEC’s agricultural principles, “the proper role of government involvement in agriculture is to limit and eliminate barriers to agricultural production, trade, and consumption throughout our innovative food system.”

The North Carolina law was similar to measures passed by state legislatures in Kansas, Iowa, Idaho, Wyoming and Utah. The courts have struck them down, ruling that they are unconstitutional. Arkansas enacted a law similar to North Carolina; is being challenged in federal court.

In 19 states, legislatures defeated gag bill proposals, while Montana, North Dakota and Missouri passed similar laws, which are still in effect.