NC News Line: NC will pay $885K in attorneys’ fees after unsuccessfully defending “ag-gag” case

This article features Government Accountability Project and was originally published here.

Lawyers with the North Carolina Attorney General’s office tried three times to convince a federal court the state’s “ag-gag” law should stand.

They lost in U.S. District Court, which ruled the law violated the constitution.

They lost at the Fourth Circuit Court of Appeals, which upheld the lower court.

They petitioned the U.S. Supreme Court to hear the case, which declined.

Now the state will pay nearly $885,000 in attorneys’ fees to the plaintiffs, including the ASPCA, the Government Accountability Project and Food & Water Watch, who successfully argued that the ag-gag law ran afoul of the First Amendment. Two national law practices, FarmSTAND and Public Justice, and 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 defending or considering passing an Ag-Gag or Anti-Sunshine Law: Defend Big Ag’s interests to the detriment of the health, safety, and civil liberties of your citizens, and you’ll be choosing to do so at the taxpayers’ significant expense.”

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

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

The North Carolina Attorney General’s Office deferred questions about the case, including from which fund the attorneys’ 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 found that as an act of newsgathering, the distribution of the undercover material was constitutionally protected, as was the very act 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 since North Carolina’s ag-gag law penalized only the documentation and distribution of negative material, it regulated speech based on the content, which violates the First Amendment, the appellate court ruled.

Although the law targeted people who were documenting animal abuse by corporations and private farms, the law was written so that it could have applied to any employee, including:

  • Law enforcement officers who documented abuses by fellow officers — but didn’t have faith in their supervisors to act — could have also been penalized had that information been passed to outside parties.
  • Workers at nursing homes or meatpacking plants who wanted to document sanitation practices during COVID-19 and pass the photos or video to the media could have been penalized.

The North Carolina measure was modeled on legislation — the Animal and Ecological Terrorism Act — drafted in 2003 by the American Legislative Exchange Council, a conservative lobbying organization that writes 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 remove barriers for agricultural production, trade, and consumption throughout our innovative food system.”

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

In 19 states, legislatures defeated proposed ag-gag bills, while Montana, North Dakota and Missouri passed similar laws, which are still in force.