Last week, the General Assembly in North Carolina sent a bill (HB 405) to the desk of Governor Pat McCrory that is directed at thwarting undercover investigations that expose businesses' wrongdoing.
The bill is the latest episode in a perennial back-and-forth dispute between the legislature and investigators documenting animal abuse at farms across the state. In recent years, North Carolina has failed several times to pass a bill criminalizing such investigations.The so-called "Property Protection Act" allows an employer to seek a recovery of damages caused by a person who gains access to the employer's property without a "bona fide intent of seeking or holding employment or doing business with the employer" and then uses the documents, recordings, or information in a way that "breach the person's duty of loyalty to the employer."
The House approved the bill in a bipartisan vote in April. It cleared the Senate with primarily Republican support.
The bill's passage comes weeks after an undercover investigator for the advocacy group, Compassion Over Killing, released footage of animal abuse at a chicken farm in Robeson County.
While critics refer to the bill as another "ag-gag" law intent on silencing whistle-blowers and protecting the interests of the state's powerful agricultural industry, HB 405 differs in two important ways from past versions of the bill and existing laws from across the country.
First, the bill protects owners of "nonpublic areas," which it defines as any areas that are not intended for access by the general public. The law would apply to undercover investigators who gain access to a variety of workplaces, including nursing homes and day cares – not just farms.
Second, "ag-gag" laws in other states make it a crime to gain access to property under false pretenses and then capture and disseminate visual or audio recordings. North Carolina's bill makes such action a civil rather than a criminal offense.The employer would have a "right to action"
under the law to sue the trespassing offender for court costs and up to $5,000 in punitive damages for each day the violation continues.
While the bill sits on Governor Pat McCrory's desk, "ag-gag" laws from Idaho and Utah are being challenged in federal courts.
Idaho's law, passed in 2014, criminalizes "interference with agricultural production." Offenders can face up to $5,000 in fines and a year in prison.
In these states, defenders of the laws claim they are protecting employers' property rights. A sponsor of Idaho's "ag-gag" law says it protects businesses and families from the "agri-terrorism" of animal welfare groups.
Critics of the laws argue that they violate the First Amendment, as they impose prior restraint on unauthorized recordings. Opponents also claim they have a chilling effect on investigations that expose abuses that might otherwise go unreported.
Some of the approximately 80 videos made over the last decade have precipitated criminal prosecutions, plant closures, and meat recalls. In 2008, undercover footage of cow abuse from a California slaughterhouse led to the largest recall in U.S. history over fears of mad cow disease, salmonella, and E. coli outbreaks.
U.S. District Judge Lynn Winmill is expected to hand down her decision on Idaho's law in the coming weeks. The trial proceedings over Utah's law are scheduled to begin in 2016.
Because North Carolina's bill is based on civil rather than criminal law and does not impose prior restraint or demand "mandatory reporting" of documented abuses to authorities within 24 or 48 hours, it may be immune to federal rulings invalidating the "ag-gag" laws of Idaho or Utah.
In North Carolina, Governor McCrory has one week left to sign or veto the bill.