People for the Ethical Treatment of Animals, Inc. v. Stein, 1:16CV25

Decision Date12 June 2020
Docket Number1:16CV25
Citation466 F.Supp.3d 547
CourtU.S. District Court — Middle District of North Carolina
Parties 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, Defendants, and North Carolina Farm Bureau Federation, Inc., Intervenor-Defendant.

David S. Muraskin, Public Justice, PC, Washington, DC, Cristina R. Stella, Animal Legal Defense Fund, Cotati, CA, Jeremy R. Williams, Patrick M. Wallace, Daniel Kent Bryson, Whitfield Bryson & Mason, LLP, Raleigh, NC, Leslie A. Brueckner, Public Justice, PC, Oakland, CA, Matthew D. Strugar, Law Office of Matthew Strugar, Los Angeles, CA, for Plaintiffs People for the Ethical Treatment of Animals, Inc., Center for Food Safety, Food & Water Watch, Farm Sanctuary, Government Accountability Project.

David S. Muraskin, Public Justice, PC, Washington, DC, Cristina R. Stella, Matthew G. Liebman, Animal Legal Defense Fund, Cotati, CA, Jeremy R. Williams, Patrick M. Wallace, Daniel Kent Bryson, Whitfield Bryson & Mason, LLP, Raleigh, NC, Leslie A. Brueckner, Public Justice, PC, Oakland, CA, Matthew D. Strugar, Law Office of Matthew Strugar, Los Angeles, CA, for Plaintiff Animal Legal Defense Fund.

David S. Muraskin, Public Justice, PC, Washington, DC, Jeremy R. Williams, Patrick M. Wallace, Daniel Kent Bryson, Whitfield Bryson & Mason, LLP, Raleigh, NC, for Plaintiff American Society for the Prevention of Cruelty to Animals.

David S. Muraskin, Public Justice, PC, Washington, DC, Jeremy R. Williams, Patrick M. Wallace, Daniel Kent Bryson, Whitfield Bryson & Mason, LLP, Raleigh, NC, William M.S. McFadden, Farm Forward Inc., Salt Lake City, UT, for Plaintiff Farm Forward.

Kimberly D. Potter, N. C. Department of Justice Education Section, Matthew Tulchin, Alexander McClure Peters, Matthew T. Tulchin, North Carolina Department of Justice, Raleigh, NC, for Defendants Attorney General Joshua Stein, Carol L. Folt.

Brett E. Legner, Timothy S. Bishop, Mayer Brown, LLP, Chicago, IL, John S. Hahn, Mayer Brown, LLP, Washington, DC, Phillip J. Parker, Jr., N.C. Farm Bureau Federation, Inc., Raleigh, NC, for Intervenor-Defendant.

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, Chief District Judge.

Plaintiffs People for the Ethical Treatment of Animals, Inc. ("PETA"), Center for Food Safety ("CFS"), Animal Legal Defense Fund ("ALDF"), Farm Sanctuary, Food & Water Watch ("FWW"), Government Accountability Project ("GAP"), Farm Forward, and the American Society for the Prevention of Cruelty to Animals ("ASPCA") seek to permanently enjoin North Carolina Attorney General, Josh Stein, and University of North Carolina-Chapel Hill Chancellor, Dr. Kevin Guskiewicz, from enforcing subsections of North Carolina General Statute § 99A-2 as unconstitutional under the First and Fourteenth Amendments to the United States Constitution. (Doc. 21 ¶ 142.)

Before the court are cross-motions for summary judgment filed by Plaintiffs (Doc. 98) and Defendants (Doc. 107), as well as Intervenor-Defendant North Carolina Farm Bureau Federation, Inc. ("Intervenor") (Doc. 109). With leave of court, amici Reporters Committee for Freedom of the Press and twenty-one other organizations1 have filed a brief in support of Plaintiffsmotion for summary judgment. (Doc. 106.) The motions have been fully briefed, and the court held oral argument on February 6, 2020. For the reasons set forth below, the court will grant in part and deny in part the partiesmotions for summary judgment, finding that the challenged provisions of the law fail to pass muster under the First Amendment - two provisions fail facially, and the remaining two provisions fail as applied to Plaintiffs.

I. BACKGROUND
A. Facts

The facts, either not in dispute or viewed in the light most favorable to the non-moving parties in the cross-motions for summary judgment, establish the following:

On June 3, 2015, over then-Governor Patrick McCrory's veto,2 the North Carolina General Assembly passed the North Carolina Property Protection Act, 2015 N.C. Sess. Laws 50, codified at N.C. Gen. Stat. § 99A-2 ("Property Protection Act" or "Act"). (Doc. 21 ¶ 1; Doc. 108 at 4.) The Act amended current law that provides a civil remedy for interference with certain property rights by creating a civil cause of action for the owner or operator of a premises as follows:

(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.

N.C. Gen. Stat. § 99A-2(a). Under the law, "an act that exceeds the person's authority" within the meaning of section (a) "is any of the following":

(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[;]
(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[;]
(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[;]
(4) Conspiring in organized retail theft, as defined in Article 16A of Chapter 14 of the General Statutes[; or,]
(5) An act that substantially interferes with the ownership or possession of real property.

Id. § 99A-2(b). "Any person who intentionally directs, assists, compensates, or induces another person to violate this section" can be held jointly liable with the employee or actor. Id. § 99A-2(c).

Any party who prevails in an action brought under the Act can recover equitable relief, compensatory damages, costs and attorneys’ fees, as well as "[e]xemplary damages as otherwise allowed by State or federal law in the amount of five thousand dollars ($5,000) for each day, or portion thereof, that a defendant has acted in violation of subsection (a)." Id. § 99A-2(d). The Act further provides that nothing in it shall be construed to "diminish the protections provided to employees under Article 21 of Chapter 95 [Retaliatory Employment Discrimination] or Article 14 of Chapter 126 [Protection for Reporting Improper Government Activities] of the General Statutes" or "limit any other remedy available at common law or provided by the general Statutes." Id. § 99A-2(e), (g).

Plaintiffs are eight organizations who either "engage in employment-based undercover investigations to document and expose animal abuse" (Doc. 99 at 2) or "use[ ] information from whistleblowers and investigators in their advocacy" (id. at 7). PETA says it has identified animal testing laboratories at the University of North Carolina-Chapel Hill that it would like to investigate through the use of an undercover investigator, but it has refrained from doing so out of fear and the "threat of exemplary damages and other civil penalties under [the Act]." (Doc. 100-1 ¶¶ 17-18, 24.) Similarly, ALDF says it is prepared to conduct undercover investigations at state-owned facilities in North Carolina, but those preparations were "thwarted when the [Act] passed." (Doc. 100-2 ¶ 8.) Both PETA and ALDF represent that if the Act were held unconstitutional, they would resume their undercover investigations. The remaining Plaintiffs have each indicated that the Act's effect on PETA and ALDF has negatively impacted the mission and goals of their organizations. Plaintiffs charge that the Act was passed specifically to ward off undercover investigations of facilities and farms in which animal testing or processing takes place. By creating a strong disincentive for PETA and ALDF to conduct undercover investigations, the remaining Plaintiffs claim, the Act has obstructed their information stream and prevents them from publishing photographs and reports that are central to their missions. (Docs. 101-1 ¶¶ 6, 8, 17-18; 101-2 ¶¶ 4-5, 10-11; 101-3 ¶¶ 5-6, 13-14; 101-4 ¶¶ 5-6, 8, 11-12; 101-5 ¶¶ 5-6, 8, 10-11; 101-6 ¶¶ 7-8, 13-14.)

B. Procedural History

Plaintiffs initiated this pre-enforcement action on January 13, 2016 (Doc. 1) and filed an amended complaint on February 25, 2016 (Doc. 21). Raising both facial and as-applied challenges, they claim the Act stifles their ability to investigate North Carolina employers for illegal or unethical conduct and restricts the flow of information those investigations provide, in violation of the First (Count I) and Fourteenth (Count II) Amendments to the United States Constitution and provisions of the North Carolina Constitution (Free Speech under Art. I, § 14 (Count III); Right to Petition under Art. I, § 12 (Count IV); and Equal Protection under Art. 1, § 19 (Count V)). On April 4, 2016, Defendants moved to dismiss the amended complaint on three grounds: Eleventh Amendment State sovereign immunity, standing, and on the merits. (Doc. 30.) In a memorandum opinion, this court found that Plaintiffs failed to allege sufficient facts to demonstrate standing and granted Defendantsmotion to dismiss. (Doc. 49 at 37.)

Plaintiffs ap...

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