Activists advocating for the rights of animals can both be proud of, and learn from, some of the animal rights law updates.

Each month, One Green Planet reports on major cases in animal law.  Because attorneys use the law in creative ways to protect animals, we cover all sorts of issues ranging from Endangered Species Act claims to shareholder derivative suits.  This month, we’re focusing on the First Amendment—the U.S. Constitutional Amendment that protects the free speech of animal-rights activists.

1. Activism, free speech, and ag-gag laws

An important way that activists stand up for animals is through undercover investigations: investigators obtain employment at facilities that exploit animals, record cruel practices and conditions, and share information with the public.  Whereas the meat and dairy industries disseminate messaging that farmers are salt-of-the-earth people who handle animals humanely, and even pamper them, activist footage of farming facilities and slaughterhouses proves that cruelty is inherent in exploiting animals for food.  In response, industries that exploit animals – and states that support them – push laws to prevent activists from speaking out.  The laws that aim to “gag” activists are known as “ag-gag” laws, as we’ve previously discussed on One Green Planet.

2. Transmuting ag-gag laws

Historically, animal rights groups have found success challenging ag-gag laws because they violate activists’ constitutional right to free speech.  But as courts strike down these laws, states have responded by passing new (and more subtle) iterations. North Carolina’s Property Protection Act is one example.  Rather than saying, for instance, activists can’t record slaughtering practices and send the videos to newspapers, it prohibited (among other things): capturing information—such as by recording images or sound—on an employer’s premises and using the information to breach the employee’s duty of loyalty to the employer.

To most, nothing illicit jumps off the page about protecting employers from disloyalty.  So what makes the law illegal?  It’s easier to see once we break down how the law uses slight of hand:

  1. It prohibits capturing and using information – not talking.
  2. It claims to be protecting employers’ property (it is, after all, called the Property Protection Act), not censoring speech.
  3. It claims to protect employers from “disloyal conduct,” not speech.

The Fourth Circuit Court of Appeals (which is the federal appellate court overseeing federal courts in Maryland, North Carolina, South Carolina, Virginia and West Virginia) wrote a strong opinion exposing the illusions of North Carolina’s law and explaining why it violates the First Amendment as applied to undercover activists.  While the case didn’t change any legal principles, it’s important pedagogically:  it describes several aspects of First Amendment jurisprudence that are important for activists to understand.

3. Takeaways for activists

Information gathering is a protected predicate to speech

Before looking in more detail at North Carolina’s law, it’s important to understand a longstanding principle of free speech law: “speech,” as protected by the First Amendment, includes the necessary predicates to speech.  In the past, for example, courts have explained that a law prohibiting trade magazines from purchasing or using ink is essentially the same as prohibiting their speech.  As relevant to North Carolina’s law, if the state can’t prohibit speech, it also can’t prohibit information gathering – such as copying notes or recording images, sound, or video – as necessary to disseminate the speech.  So North Carolina’s first trick – prohibiting the capture of information rather than talking, per se – doesn’t evade First Amendment concerns.

States can’t punish activists for speech, regardless of where the speech occurs

North Carolina’s second trick was claiming that the law merely protects employers’ property.  On closer inspection, however, it is more about speech than property rights.

States can, of course, pass general laws to protect property – as they should.  These laws allow landowners to exclude people from their land and to recover damages from people who intrude on and damage it.  So if a stranger walks into your office, without permission, and breaks your TV, you can sue that stranger for trespass (among other torts).

But states must be careful about drawing a line between interference with property, on the one hand (which they can and do prohibit), and speech, on the other hand (which they must typically allow).  Consider two different (crazy) individuals who run into a politician’s home: one simply runs into the home and is arrested.  The second runs in and shouts “I hate your policies.”  Both are liable for trespass: but the second isn’t any more liable than the first for yelling about policy.

North Carolina’s law drew this line improperly.  It crafted different punishments for:

    1. an employer who procures employment under false pretenses to access a slaughterhouse, and 
    2. an employer who does the same but records and uses information to speak out against the employer.

In doing so, North Carolina tied liability to speech; and that’s not allowed under the First Amendment.  Since activists can disseminate critical information, they can collect and share the information, just the same, from behind enemy lines.

States can’t hide censorship in clever laws

It’s a tenet of First Amendment jurisprudence that critics can’t be punished for dissenting speech.  In fact, protecting unpopular speech is how the United States promotes a free exchange of ideas.

With this in mind, laws are more likely to violate the First Amendment if they discriminate against certain viewpoints, or against people with certain views.  Laws, for example, that say “you can’t promote veganism” or “vegans can’t speak here” are particularly dangerous because they embed value judgments in the law.  Likewise with laws that prohibit “criticizing an employer.”

But North Carolina was clever.  The State did not, in so many words, punish employees who “criticize employers.”  Instead, it punished employees who collected and used information “to breach a duty of loyalty” to the employer.  That sounds almost fancy enough to be acceptable.  So what’s the problem?

Under some circumstances, there is no problem with a law that prohibits disloyalty to an employer.  A employee cannot, for example, work for a competitor and steal secrets.  The problem arises when the law equates “speech” – i.e., an article criticizing an employer – to “disloyalty,” and then punishes the “disloyalty.”   Put differently, North Carolina could not say it’s “punishable disloyalty” for an undercover employee to record and use videos showing what really happens in slaughterhouses because – regardless of the State’s framing – it was still punishing speech.

4. The outcome

In the end, the Fourth Circuit struck down North Carolina’s law as it applies to undercover investigations.  (The Court recognized that the law might still be valid in different circumstances).  As a result, animal-rights activists in North Carolina face fewer hurdles in trying to expose cruel practices in animal agriculture.  The opinion also helps activists to understand their constitutional right to free speech.

Original source: https://www.onegreenplanet.org