IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
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.

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1:16CV25

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

Case 1:16-cv-00025-TDS-JEP Document 138 Filed 06/12/20 Page 1 of 73

 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).
Committee

for

Freedom

of

With leave of court, amici Reporters
the

Press

and

twenty-one

other

organizations1 have filed a brief in support of Plaintiffs’ motion
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 parties’ motions for summary judgment, finding
that the challenged provisions of the law fail to pass muster under

1

Amici are as follows: American Society of News Editors; The Associated
Press Media Editors; Association of Alternative Newsmedia; Capitol
Broadcasting Company, Inc.; First Look Media Works, Inc.; Forbes Media
LLC; Freedom of the Press Foundation; Gannett Co., Inc.; GateHouse Media;
The International Documentary Association; The Investigative Reporting
Workshop; The National Press Club; The National Press Club Journalism
Institute; The National Press Photographers Association; The North
Carolina Press Association; The Online News Association; POLITICO; Radio
Television Digital News Association; Reporters Without Borders; Society
of Professional Journalists; and The Tully Center for Free Speech. (Doc.
106 at 25-30.)

2

Case 1:16-cv-00025-TDS-JEP Document 138 Filed 06/12/20 Page 2 of 73

 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”).
¶ 1; Doc. 108 at 4.)

(Doc. 21

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.

2

In his veto statement, Governor McCrory stated: “While I support the
purpose of this bill, I believe it does not adequately protect or give
clear guidance to honest employees who uncover criminal activity. I am
concerned that subjecting these employees to potential civil penalties
will create an environment that discourages them from reporting illegal
activities.” (Doc. 99-8 at 4.)

3

Case 1:16-cv-00025-TDS-JEP Document 138 Filed 06/12/20 Page 3 of 73

 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
ownership or possession of real property.

Id. § 99A-2(b).

the

“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

4

Case 1:16-cv-00025-TDS-JEP Document 138 Filed 06/12/20 Page 4 of 73

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

5

Case 1:16-cv-00025-TDS-JEP Document 138 Filed 06/12/20 Page 5 of 73

 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
6

Case 1:16-cv-00025-TDS-JEP Document 138 Filed 06/12/20 Page 6 of 73

 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 Defendants’ motion to dismiss.

(Doc. 49 at

37.)
Plaintiffs appealed this court’s judgment, and in a June 5,
2018 opinion the Fourth Circuit held that Plaintiffs “sufficiently
alleged,

at

least

at

[the

motion

to

dismiss]

stage

of

the

litigation, an injury-in-fact sufficient to meet the first prong
of the First Amendment standing framework” and reversed this
court’s judgment.

PETA v. Stein, 737 F. App’x 122, 131 (4th Cir.

2018) (per curiam).

On remand, this court held argument on the

remainder of Defendants’ motion to dismiss, granting it in part
and denying it in part, leaving only Plaintiffs’ claims under the
First Amendment (Count I) and Fourteenth Amendment (Count II) to
the United States Constitution.

(Doc. 73.)

Thereafter, North Carolina Farm Bureau Federation, Inc. – a
nonprofit organization dedicated to representing the interests of
North Carolina farmers - moved to intervene as a Defendant pursuant
to Federal Rule of Civil Procedure 24 and Local Rule 7.3 (Doc.
82), and Plaintiffs filed an unopposed motion to join the UNC
System president and the UNC Board of Governors as Defendants (Doc.
7

Case 1:16-cv-00025-TDS-JEP Document 138 Filed 06/12/20 Page 7 of 73

 87).

The court granted North Carolina Farm Bureau Federation’s

motion but denied Plaintiffs’ motion for joinder. (Doc. 92 at 11.)
Plaintiffs, Defendants, and Intervenor each moved for summary
judgment on September 3, 2019, based on a record developed largely
of affidavits, and the court heard argument on February 6, 2020.
The motions are thus ready for decision.
II.

ANALYSIS
Defendants

first

renew

their

subject matter jurisdiction.

challenge

to

this

court’s

(Docs. 108 at 9 n.2; 115 at 3-6.)

Plaintiffs assert that the court has subject matter jurisdiction
under 28 U.S.C. §§ 1331 and 1343 (Doc. 21 ¶ 9) and that venue is
proper (id. ¶ 14).
A.

Standing

Plaintiffs, relying on the Fourth Circuit’s prior opinion in
this case, PETA, 737 F. App’x 122, contend that they have set out
sufficient facts, supported by affidavits, to establish standing.
(Doc. 99 at 8-10.)

Defendants disagree.

(Doc. 115 at 3.)

Article III of the United States Constitution limits the
jurisdiction of federal courts to deciding cases or controversies.
U.S. Const. art. III, § 2, cl. 1.

To satisfy this case-or-

controversy requirement, a plaintiff must establish that its claim
meets three requirements of Article III standing:
(1)
An
injury-in-fact
particularized
invasion
interest); (2) causation

(i.e.,
a
concrete
and
of
a
legally
protected
(i.e., a fairly traceable
8

Case 1:16-cv-00025-TDS-JEP Document 138 Filed 06/12/20 Page 8 of 73

 connection between the alleged injury in fact and the
alleged
conduct
of
the
defendant);
and
(3)
redressability (i.e., it is likely and not merely
speculative that the plaintiff’s injury will be remedied
by the relief plaintiff seeks in bringing suit).
Beck v. McDonald, 848 F.3d 262, 269 (4th Cir. 2017) (quoting David
v. Alphin, 704 F.3d 327, 333 (4th Cir. 2013)).
“[E]ach element [of standing] must be supported in the same
way as any other matter on which the plaintiff bears the burden of
proof, i.e., with the manner and degree of evidence required at
the successive stages of the litigation.”

Id. at 270 (quoting

Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)).

At the

summary judgment stage, a plaintiff must “set forth by affidavit
or other evidence specific facts, which for purposes of the summary
judgment motion will be taken to be true.”

Id. (quoting Lujan,

504 U.S. at 561).
Plaintiffs

have

met

this

burden,

having

set

forth

by

affidavit, the veracity of which has not been challenged, specific
facts which, taken as true, establish Article III standing.
1.

Injury-in-Fact

Defendants contend that Plaintiffs’ basis for a chill on the
exercise of their rights is “objectively unreasonable based on the
record”

and

that

their

fears

are

“purely

hypothetical,

speculative, and conjectural, and do not rise to an injury-infact.”

(Doc. 115 at 4.)

Plaintiffs argue that following the

Fourth Circuit’s ruling, to show injury-in-fact they must merely
9

Case 1:16-cv-00025-TDS-JEP Document 138 Filed 06/12/20 Page 9 of 73

 establish that they have conducted undercover investigations in
the past to uncover unethical or illegal treatment of animals and
disseminate that information and that they are prepared to proceed
with further investigations but are chilled from doing so because
they fear liability under the Act.

(Doc. 99 at 9.)

“To establish injury in fact, a plaintiff must show that he
or she suffered an invasion of a legally protected interest that
is

concrete

and

particularized

conjectural or hypothetical.”

and

actual

or

imminent,

not

Beck, 848 F.3d at 270 (internal

quotation marks omitted) (quoting Spokeo, Inc. v. Robins, 136 S.
Ct. 1540, 1548 (2016)).

In the First Amendment context, the

“standing requirements are somewhat relaxed,” Cooksey v. Futrell,
721 F.3d 226, 235 (4th Cir. 2013), and plaintiffs can satisfy the
injury-in-fact

requirement

by

“showing

that

[the

challenged

statute] ha[s] an objectively reasonable chilling effect on the
exercise of their rights.”

PETA, 737 F. App’x at 129 (internal

quotation marks omitted) (quoting Cooksey, 721 F.3d at 229).

“To

decide the objective reasonableness of the claimed chilling effect
from the Act, the court evaluates whether there is a credible
threat of enforcement against the plaintiff.”

Id.

“Government

action will be sufficiently chilling when it is likely to deter a
person of ordinary firmness from the exercise of First Amendment
rights.

Id. (quoting Cooksey, 721 F.3d at 236).

In addressing the issue of injury-in-fact on appeal, the
10

Case 1:16-cv-00025-TDS-JEP Document 138 Filed 06/12/20 Page 10 of 73

 Fourth Circuit held that Plaintiffs “sufficiently allege[d] an
injury-in-fact,” stating:
Plaintiffs’ alleged injury is not just the imminent
threat of a civil lawsuit, which would only occur if
they go forward with their plans to investigate in the
nonpublic
areas
of
a
state
employer’s
premises and Defendants choose to file suit against
them. Rather, Plaintiffs[’] alleged injury for standing
purposes is that they have refrained from carrying out
their planned investigations based on their reasonable
and well-founded fear that they will be subjected to
significant exemplary damages under the Act if they move
forward at all.
Id. at 129, 131 (emphasis in original) (internal quotation marks
omitted).

In reaching its holding, the court explained that

Plaintiffs alleged (1) “an intention to engage in a course of
conduct arguably affected with a constitutional interest,” (2) “a
credible threat that the Act will be enforced against them if they
proceed with their plans,” and (3) “that they have refrained from
proceeding for fear of being subjected to the severe civil remedies
provided for in the Act.” Id. at 129-130 (internal quotation marks
omitted).
By its terms, the Act appears to prohibit Plaintiffs from
conducting undercover investigations and “subject them to civil
liability, including severe exemplary damages.”

Id. at 130.

The

actions in which Plaintiffs wish to engage, which are the same as
those before enactment of the Act, could be targeted by the
Defendants.

Because a civil action could be brought under the Act

to target not only the investigations in which Plaintiffs wish to
11

Case 1:16-cv-00025-TDS-JEP Document 138 Filed 06/12/20 Page 11 of 73

 engage, but also the use of the information gathered from these
investigations, the Fourth Circuit found there is a credible threat
the Act will be enforced against them.
injury-in-fact,

Plaintiffs

must

Id.

establish

Therefore, to show
that

(1)

they

have

engaged in or supported undercover investigations in the past for
the purpose of gathering and disseminating information or have
relied on undercover investigations to disseminate information,
and (2) that they have refrained from doing so out of fear of
liability under the Act.
At this stage of the litigation, Plaintiffs cannot rely on
“mere allegations” but must establish specific facts by evidence.
Beck, 848 F.3d at 270 (citation and internal quotation marks
omitted).

A declaration from an individual authorized to make

statements on behalf of the organization has been filed by each of
the eight Plaintiffs.
[ASPCA],

101-2

[CFS],

(Docs. 100-1 [PETA], 100-2 [ALDF], 101-1
101-3

[Farm

Sanctuary], 101-5 [FWW], 101-6 [GAP].)

Forward],

101-4

[Farm

Both PETA and ALDF have

declared that they have engaged in undercover investigations at
facilities in North Carolina in the past and are not willing to
proceed with their planned investigations out of fear of liability
under the Act.
15.)

(Docs. 100-1 ¶¶ 4, 6-18, 21-25; 100-2 ¶¶ 7-10, 12-

The ASPCA has declared that the Act has both stopped

investigations, which prevents the production of materials they
rely on, and discouraged them from funding investigations in North
12

Case 1:16-cv-00025-TDS-JEP Document 138 Filed 06/12/20 Page 12 of 73

 Carolina out of fear of liability.

(Doc. 101-1 ¶¶ 6, 8, 17-19.)

Finally, CFS, Farm Forward, Farm Sanctuary, FWW, and GAP have all
declared that they rely on information from whistleblowers and
undercover

investigators

organizations’

missions,

to

produce

and

information from reaching them.

the

content
Act

is

central

to

their

preventing

that

(Docs. 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.)
Plaintiffs have set out specific facts to establish an injury
in fact.
2.

Causation and Redressability

Defendants argue that Plaintiffs “have not presented, nor can
they, any evidence showing that the Defendants have threatened any
kind of action against Plaintiffs or that they are likely to
enforce the Act against them.”

(Doc. 115 at 5.)

Plaintiffs argue

that in the interlocutory appeal the Fourth Circuit found that
“these Defendants must either initiate or prosecute [a suit],
making [Plaintiffs’] chill traceable to and redress[a]ble against
Defendants.”

(Doc. 99 at 9.)

The burden on Plaintiffs is to show (1) “a causal connection
between the injury and the conduct complained of, such that the
injury is fairly traceable to the defendant’s actions” and (2) “a
likelihood that the injury will
decision.”

be redressed by a favorable

PETA, 737 F. App’x. at 128 (citation and internal
13

Case 1:16-cv-00025-TDS-JEP Document 138 Filed 06/12/20 Page 13 of 73

 quotation marks omitted).

As the Fourth Circuit noted, the injury

here is that Plaintiffs “have refrained from carrying out their
planned investigations based on their reasonable and well-founded
fear that they will be subjected to significant exemplary damages
under the Act if they move forward” with their plans to investigate
in areas prohibited by the Act.

Id. at 131.

In its opinion, the

Fourth Circuit stated that Plaintiffs “plausibly alleged that
Defendants are the officials who are empowered to initiate or file
suits under the Act if Plaintiffs carry out their investigations,
and neither the UNC Chancellor nor the Attorney General have
disavowed enforcement if Plaintiffs proceed with their plans.”
Id. at 130-31 (citation and internal quotation marks omitted).3
They further found that “an order preventing these Defendants from
exercising their powers to initiate or bring a lawsuit under the
Act would seem to be sufficient to quell Plaintiffs’ fear of
liability.”

Id. at 132.

As set forth in Plaintiffs’ declarations, the ability of
Defendants to bring a civil action under the Act and subject
Plaintiffs to civil liability and exemplary damages is the cause
of Plaintiffs’ injury - the prevention from moving forward with
undercover investigations and disseminating information.

As the

3

This court had disagreed, noting that it was some 13 to 15 years ago
that PETA last conducted an undercover investigation of a UNC facility
and that the State never threatened or instituted any legal action in
connection with it. (Doc. 49 at 5-6, 28.)

14

Case 1:16-cv-00025-TDS-JEP Document 138 Filed 06/12/20 Page 14 of 73

 Fourth Circuit found already, barring Defendants from bringing
suit would redress the injury.
forth

sufficient

facts

Id.

to

Thus, Plaintiffs have set

establish

both

causation

and

redressability and consequently have standing.
B.

First Amendment Claims

Plaintiffs

move

for

summary

judgment

on

their

remaining

claims, arguing that subsections (b)(1), (b)(2), (b)(3) and (b)(5)
of the Act violate the First Amendment because they fail the
requisite scrutiny and are unconstitutionally overbroad.4
98 at 1-2.)

(Doc.

Plaintiffs seek to strike the Act both facially and

as applied to them.

Defendants and Intervenor dispute both

assertions, arguing that the Act regulates wrongful conduct and is
not overbroad, and that any prohibited speech is not protected
speech.

(Docs. 115 at 6, 16-18; 121 at 7-8, 17-19.)

Further,

they contend that if found to regulate protected speech, the Act
is content- and viewpoint-neutral and can withstand intermediate
scrutiny.

(Docs. 115 at 13-15; 121 at 14-17.)
1.

Summary

Standard of Review
judgment

is

appropriate

where

the

pleadings,

affidavits, and other proper discovery materials demonstrate that

4

At oral argument, Plaintiffs acknowledged that N.C. Gen. Stat. § 99A2(c) is not unconstitutional unless, in their view, it is used to create
joint liability for violations of the challenged provisions, subsections
(b)(1) through (b)(3) or (b)(5). Plaintiffs do not challenge § 99A-2(e)
but instead argue that subsection (e) is further evidence that the Act
is directed at First Amendment protected interests. (Doc. 99 at 11-13.)

15

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 no genuine dispute as to any material fact exists and the moving
party is entitled to judgment as a matter of law.

Fed. R. Civ. P.

56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

The

party seeking summary judgment bears the burden of initially
demonstrating the absence of a genuine dispute as to any material
fact.

Celotex, 477 U.S. at 323.

“When faced with cross-motions for summary judgment, the
court must review each motion separately on its own merits to
determine whether either of the parties deserves judgment as a
matter of law.”

Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th

Cir. 2003) (citation and internal quotation marks omitted).

In

considering each motion, the court must “resolve all factual
disputes and any competing, rational inferences in the light most
favorable to the party opposing that motion.”
internal quotation marks omitted).

Id. (citation and

There is no issue for trial

unless sufficient evidence favoring the non-moving party exists
for a reasonable factfinder to return a verdict in its favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 257 (1986).
The court is faced with cross-motions for summary judgment.
No party contends that there are material facts in dispute, and
all agreed at oral argument that summary judgment is an appropriate
disposition in this case.
2.

State Action

The First Amendment guarantees that “Congress shall make no
16

Case 1:16-cv-00025-TDS-JEP Document 138 Filed 06/12/20 Page 16 of 73

 law . . . abridging the freedom of speech.”

U.S. Const. amend. I.

When considering an action brought under the First Amendment, “it
must

be

remembered

that

the

First

and

Fourteenth

Amendments

safeguard the rights of free speech and assembly by limitations on
state action, not on action by the owner of private property used
nondiscriminatorily for private purposes only.”

Lloyd Corp. v.

Tanner, 407 U.S. 551, 567 (1972) (emphasis added).

But while the

Free Speech Clause prohibits only state action, “[t]he test is not
the form in which state power has been applied but, whatever the
form, whether such power has in fact been exercised.”
Co. v. Sullivan, 376 U.S. 254, 265 (1964).

N.Y. Times

In fact, “sometimes

the state can censor just as effectively through legal forms that
are private as it can through ones that are public.”5

Overbey v.

Mayor of Baltimore, 930 F.3d 215, 224 (4th Cir. 2019) (quoting
Daniel J. Solove & Neil M. Richards, Rethinking Free Speech and
Civil Liability, 109 Colum. L. Rev. 1650, 1668 (2009)).
Defendants rightly note that the present case differs from
numerous other similar lawsuits across the country that challenge
restrictions

on

undercover

agricultural operations.6

investigations,

particularly

of

As far as the court can discern, nearly

5

It is for this reason that libel laws, although enforced by private
parties, remain subject to First Amendment scrutiny. See, e.g., N.Y.
Times, 376 U.S. at 268-69.
6

Litigation against so-called “Ag-Gag” laws have been pursued
nationwide, including in Arkansas, ALDF v. Vaught, No. 4:19-cv-00442-

17

Case 1:16-cv-00025-TDS-JEP Document 138 Filed 06/12/20 Page 17 of 73

 all other similar laws impose criminal liability while the Property
Protection Act provides a civil cause of action for damages.

But

while the Act operates in the private sphere, it is state action
to the extent the State has identified speech (or in some cases,
conduct

which

proscribed

can

and

prohibition.

has

include

speech)

empowered

it

private

wishes
parties

to
to

allow

to

enforce

be
the

Cohen v. Cowles Media Co., 501 U.S. 663, 668 (1991)

(finding in breach of contract dispute that “the application of
state rules of law in state courts in a manner alleged to restrict
First Amendment freedoms constitutes ‘state action’ under the
Fourteenth Amendment”).

“Calling a speech restriction a ‘property

right’ . . . doesn’t make it any less a speech restriction, and it
doesn’t make it constitutionally permissible.”

Eugene Volokh,

Freedom

The

of

Speech

and

Information

Privacy:

Troubling

Implications of a Right to Stop People from Speaking About You, 52
Stan. L. Rev. 1049, 1063 (2000).

JM, Doc. 51 (E.D. Ark. Feb. 14, 2020) (granting the defendants’ motion
to dismiss where plaintiffs did not allege facts sufficient to establish
injury in fact), Idaho, ALDF v. Wasden, 878 F.3d 1184 (9th Cir. 2018)
(holding that Idaho’s statute prohibiting a person from making an
unauthorized audio or video recording of an agricultural facility’s
operations violated the First Amendment), Iowa, ALDF v. Reynolds, 353
F. Supp. 3d 812 (S.D. Iowa 2019) (finding Iowa’s “Ag-Gag” law facially
unconstitutional and granting plaintiffs’ motion for summary judgment),
Kansas, ALDF v. Kelly, No. 18-2657-KHV, 2020 WL 362626, *1 (D. Kan. Jan.
22, 2020) (finding that the challenged provisions of the Kansas law
violated the First Amendment and granting in part plaintiffs’ motion for
summary judgment), and Utah, ALDF v. Herbert, 263 F. Supp. 3d 1193 (D.
Utah 2017) (finding Utah’s law unconstitutional under the First Amendment
and granting plaintiffs’ motion for summary judgment).

18

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 In the present case, moreover, Plaintiffs have strategically
targeted a State entity that would enforce the Act through State
actors.

As the Fourth Circuit stated:

It appears that [the] Chancellor . . . would be the
state official tasked with either initiating or
requesting approval for a lawsuit under the Act if PETA
carried out its planned investigation of UNC-Chapel
Hill. And Attorney General Stein would, at a minimum,
be the state official charged with representing any
targeted state agency that chose to sue under the Act.
PETA, 737 F. App’x at 132.

State action is therefore present

through the actions of the UNC Chancellor and the North Carolina
Attorney General.

This provides a sufficient basis to challenge

the Property Protection Act under the First Amendment as applied
to the States through the Fourteenth Amendment.
3.

Facial versus As-Applied Challenges

Plaintiffs challenge the Act both facially and as applied to
them.

“[T]he distinction between facial and as-applied challenges

is not so well defined that it has some automatic effect or that
it must always control the pleadings and disposition in every case
involving a constitutional challenge.” Citizens United v. Fed.
Election

Comm’n,

558

U.S.

310,

331

(2010).

Rather,

“[t]he

difference between a facial challenge and an as-applied challenge
lies in the scope of the constitutional inquiry.”

Educ. Media Co.

at Va. Tech, Inc. v. Insley, 731 F.3d 291, 298 n.5 (4th Cir. 2013).
In distinguishing between facial and as-applied challenges, the
Fourth Circuit has noted:
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 Under a facial challenge, a plaintiff may sustain its
burden in one of two ways. First, a plaintiff asserting
a facial challenge may demonstrate that no set of
circumstances exists under which the law would be valid,
or that the law lacks any plainly legitimate sweep.
Second, a plaintiff asserting a facial challenge may
also prevail if he or she show[s] that the law is
overbroad
because
a
substantial
number
of
its
applications are unconstitutional, judged in relation to
the statute’s plainly legitimate sweep.
Under either
scenario, a court considering a facial challenge is to
assess the constitutionality of the challenged law
without regard to its impact on the plaintiff asserting
the facial challenge.
In contrast, an as-applied
challenge is based on a developed factual record and the
application of a statute to a specific person[.]
Id. (internal citations and quotation marks omitted).

Further,

facial challenges “are disfavored for several reasons.”

Wash.

State Grange v. Wash. State Republican Party, 552 U.S. 442, 450
(2008).
Id.

First, facial challenges “often rest on speculation.”

Additionally, they “run contrary to the fundamental principle

of judicial restraint that courts should neither anticipate a
question of constitutional law in advance of the necessity of
deciding it nor formulate a rule of constitutional law broader
than is required by the precise facts to which it is to be applied.”
Id. at 450-51 (citation and internal quotation marks omitted).
Finally, facial challenges may prevent laws “embodying the will of
the people from being implemented in a manner consistent with the
Constitution.”

Id. at 451.

With these principles in mind, the court turns to Plaintiffs’
specific challenges.

20

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 4.
The

Free Speech Analysis

parties

agree

that

the

First

analysis proceeds in three stages.
110 at 21-24.)

court

Free

Speech

(Docs. 99 at 10-15; 108 at 10;

First, the court must determine whether the Act

regulates speech or conduct.
the

Amendment

must

determine

Second, if the Act regulates speech,
what

level

of

scrutiny

applies

by

considering whether the Act is content- and viewpoint-neutral.
Finally, applying the appropriate level of scrutiny, the court
must determine whether the party with the burden has made the
requisite showing.

Cornelius v. NAACP Legal Def. & Educ. Fund,

Inc., 473 U.S. 788, 797 (1985).

See, e.g., ALDF v. Wasden, 878

F.3d 1184, 1193-94 (9th Cir. 2018); ALDF v. Kelly, No. 18-2657KHV, 2020 WL 362626, at *15 (D. Kan. Jan. 22, 2020); ALDF v.
Reynolds, 353 F. Supp. 3d 812, 821 (S.D. Iowa 2019).
a.
Defendants

Speech or Conduct
and

Intervenor

argue

that

the

challenged

provisions of the Act are not subject to First Amendment scrutiny
because they proscribe unprotected speech, that is, speech made in
connection with a trespass.

(Docs. 115 at 10-12; 116 at 15-17.)

Further, they argue that the law is one of general applicability,
and thus incidental effects on speech do not require scrutiny.
(Docs. 115 at 6-12; 116 at 10-14.)

Plaintiffs contend that the

Act targets protected speech and is not one of general application
because speech is what triggers liability, proving that speech is
21

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 the Act’s true aim.
Speech

is

(Doc. 114 at 13.)

protected

under

protection is not absolute.

the

First

Amendment,

but

the

United States v. Stevens, 559 U.S.

460, 468-69 (2010) (noting permissible restrictions for obscenity,
defamation, fraud, incitement, and speech integral to criminal
conduct).

Some categories of speech can be regulated not because

they are “invisible to the Constitution,” but “because of their
constitutionally proscribable content.”

R.A.V. v. City of St.

Paul, 505 U.S. 377, 383-84 (1992). The Government cannot use these
categories
unrelated

of
to

speech
their

as

“vehicles

distinctively

for

content

proscribable

discrimination
content,”

and

restrictions based on particular viewpoints cannot stand under the
First Amendment.

Id. at 383-85.

While the Supreme Court has held that motion pictures fall
within the scope of the First Amendment, Joseph Burstyn, Inc. v.
Wilson, 343 U.S. 495, 501-02 (1952), the Court has not definitively
addressed whether recording itself is protected speech.

However,

several courts have recognized recording as either expressive
conduct warranting First Amendment protection, Wasden, 878 F.3d at
1203-04 (finding the creation of an audiovisual recording to be
speech because “[t]he act of recording is itself an inherently
expressive

activity”),

or

conduct

essentially

preparatory

to

speech, Am. Civil Liberties Union of Ill. v. Alvarez, 679 F.3d
583,

595

(7th

Cir.

2012)

(emphasis

in

original)

(“The

22

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act

 of making an

audio

or

audiovisual

recording

is

necessarily

included within the First Amendment’s guarantee of speech . . . as
a corollary of the right to disseminate the resulting recording.”).
The same is true for the act of taking or capturing a picture.
See Fields v. City of Philadelphia, 862 F.3d 353, 358 (3d Cir.
2017) (“The First Amendment protects actual photos . . . and for
this protection to have meaning the Amendment must also protect
the act of creating that material.”).
recording is of course speech.
U.S.

552,

568

(2011)

The act of disseminating a

Sorrell v. IMS Health Inc., 564

(citation

and

internal

quotation

marks

omitted) (“An individual’s right to speak is implicated when
information he or she possesses is subjected to restraints on the
way in which the information might be used or disseminated.”).
Defendants’

and Intervenor’s attempt to

capture and recording following a trespass

categorize image
under the

unprotected speech rests on a misreading of the law.

Act as

It is true

that free speech cannot be used to justify violation of laws of
general application that operate independent of speech, such as
trespass, copyright, labor, antitrust, and tax laws.

See, e.g.,

Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505, 521
(4th Cir. 1999) (rejecting free speech defense to trespass law).
But while the press enjoys no special status to avoid such laws,
it does not mean the category of speech is thus unprotected.

See

Brown v. Entm’t Merchants Ass’n, 564 U.S. 786, 791-92 (2011)
23

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 (reaffirming that “new categories of unprotected speech may not be
added to the list by a legislature that concludes certain speech
is too harmful to be tolerated”).

The Property Protection Act

therefore does not escape First Amendment scrutiny altogether on
the ground that the speech is not protected.
Similarly, Defendants’ and Intervenor’s argument that the Act
avoids scrutiny because it is generally applicable is incorrect.
Generally applicable laws are those that affect speech in a neutral
way, and such laws with only an incidental effect on speech do not
usually draw First Amendment scrutiny.

Cohen, 501 U.S. at 669

(rejecting First Amendment exception to breach of contract claim,
noting that “generally applicable laws do not offend the First
Amendment simply because their enforcement against the press has
incidental effects on its ability to gather and report the news”);
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 640 (1994) (“[T]he
enforcement of a generally applicable law may or may not be subject
to

heightened

scrutiny

under

the

First

Amendment . . . .”).

However, where a law has more than an incidental effect on speech
or where liability is triggered by engaging in First Amendment
protected activity, the law is subject to First Amendment scrutiny.
Alvarez, 679 F.3d at 602-03 (“When the expressive element of an
expressive activity triggers the application of a general law,
First Amendment interests are in play.”).

And even a generally

applicable law can be subject to First Amendment scrutiny as
24

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 applied to speech that falls within its terms.

See Billups v.

City of Charleston, No. 19-1044, 2020 WL 3088108, at *6 (4th Cir.
June 11, 2020) (finding that laws regulating conduct can be subject
to First Amendment scrutiny even though they do not directly
regulate speech) (citing Holder v. Humanitarian Law Project, 561
U.S. 1, 28 (2010)); Capital Assoc. Indus., Inc. v. Stein, 922 F.3d
198, 209 (4th Cir. 2019).
These distinctions are seen in Food Lion, which Defendants
and Intervenor claim justifies the Act.

They contend that the Act

merely codifies the case’s holding that the torts of trespass and
duty of loyalty are generally applicable laws and that undercover
video recordings made by employees in the course of those torts
were therefore not protected by the First Amendment.
at 7; 116 at 12.)

(Docs. 115

Plaintiffs argue that this misreads the case,

especially as applied to the Property Protection Act, and that the
court’s statements regarding the breach of duty of loyalty were
subsequently abrogated by the North Carolina Supreme Court and are
therefore of no value.

(Doc. 114 at 15.)

Defendants’ and Intervenor’s reliance on Food Lion is largely
misplaced.

The case involved a grocery chain’s lawsuit over an

investigation of its food handling practices by the television
network American Broadcasting Company, whose employees obtained
jobs with the chain that enabled the taking of videos with hidden
cameras.

Food Lion asserted several claims, including trespass
25

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 and breach of its employees’ duty of loyalty.

A jury found for

Food Lion, and the Fourth Circuit affirmed in part.

On appeal,

the defendants contended that their recording was newsgathering
that was protected by the First Amendment.

The court rejected

this argument, finding the torts of breach of duty of loyalty and
trespass to be generally applicable, and thus not subject to First
Amendment scrutiny, because they do not “target[] or single[] out”
the press or have more than an incidental effect on it.
at 521-22.

194 F.3d

The court concluded that because the employees “went

into areas of the stores that were not open to the public and
secretly videotaped, an act that was directly adverse to the
interests of their . . . employer, Food Lion,” they trespassed and
“breached the duty of loyalty, thereby committing a wrongful act
in abuse of their authority to be on Food Lion’s property.”

Id.

at 519.
Subsequently, in Dalton v. Camp, the Supreme Court of North
Carolina specifically addressed the Fourth Circuit’s Food Lion
opinion and concluded that the court “incorrectly interpreted []
state case law.”

548 S.E.2d 704, 709 (N.C. 2001).

The court held

that while North Carolina courts “recognize the existence of an
employee’s duty of loyalty, [they] do not recognize its breach as
an independent claim.”

Id.

for terminating an employee.

Instead, it is only a justification
Id.

Moreover, the court found no

indication a fiduciary duty would apply to a lower-level grocery
26

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 store

employee.

Defendants’

Id.

argument.

Plaintiffs

contend

this

disposes

Defendants

respond

that

the

of

General

Assembly remedied this by creating a cause of action in the
Property Protection Act for a breach of duty of loyalty.
115 at 10, 13, 14.)

(Doc.

It is not entirely clear, however, that the

General Assembly has done so.

The PPA does not define acts that

breach the duty of loyalty or the class of employees who would owe
such a duty – issues addressed in Dalton v. Camp.

Rather, it

creates a cause of action against one who enters the nonpublic
areas of an employer’s premises and engages in conduct with the
purpose of breaching the employee’s duty of loyalty, thus making
the breach of an employee’s duty of loyalty an element of a (b)(1)
or (b)(2) claim, not a standalone cause of action.
In a related fashion, Defendants and Intervenor also rely
generally on a line of cases that upheld claims for trespass and
invasion of privacy where surreptitious videotaping or electronic
surveillance occurred.

See, e.g., Miller v. Brooks, 472 S.E.2d

350 (N.C. Ct. App. 1996) (estranged wife trespassed into husband’s
home and installed video camera in bedroom); Dietemann v. Time,
Inc., 449 F.2d 245 (9th Cir. 1971) (invasion of privacy under
California law where Life Magazine published picture taken of
plaintiff in his home without his consent).

They argue that these

cases demonstrate that “[e]ven an authorized entry can be trespass
if a wrongful act [such as a recording or photograph] is done in
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 excess of and in abuse of authorized entry.” (Doc. 110 at 14-15
(quoting Miller, 472 S.E.2d at 355).)
This last contention is true.

But in each of these cases,

the claims were based on laws of general application – such as
trespass and invasion of privacy – which do not require speech as
an element of proof.

The courts rejected arguments that the

offender could seek the protection of the First Amendment simply
because he engaged in speech while committing these torts.

But

where the law itself proscribes a form of expression, it differs
from these laws of general application and is subject to heightened
scrutiny.

Here, the Property Protection Act appears to set out a

law of general application in paragraph (a) – indeed, no Plaintiff
has challenged the language of that subsection.

But the General

Assembly went on in subsections (b)(1) through (b)(5) to define
the specific conduct that, if proven, would constitute a violation.
Subsections (b)(1) through (b)(5) have been treated by the parties
as elements of a Property Protection Act claim, and the court reads
them the same way.

Thus, to the extent the (b) subsections include

speech as an element of proof or have more than an incidental
effect on it, they implicate the First Amendment.7

7

In this respect, the Property Protection Act may differ from the similar
Arkansas statute that sets out a non-exclusive list of ways a person can
exceed their authority to enter a non-public area. See Ark. Code Ann.
§ 16-118-113 (2017).

28

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 i.

Subsection (b)(1)

Under subsection (b)(1) of the Act, a person can be held
liable if he intentionally accesses the nonpublic areas of an
employer’s premises without a bona fide intent, and “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.”

N.C. Gen. Stat. § 99A-2(b)(1).

Plaintiffs argue

that (b)(1)’s prohibition on capturing information implicates the
First Amendment, contending that the First Amendment protects
against restrictions on the creation of material for speech.

They

further argue that “us[ing]” information implicates the First
Amendment and cite Sorrell, 564 U.S. at 568, for the proposition
that

“‘[a]n

individual’s

right

to

speak

is

implicated

when

information he or she possesses is subjected to restraints on’ its
‘disseminat[ion].’”
Intervenor,

(Doc.

proscribing

99

“use”

at

10.)

prohibits

To

Defendants

conduct,

not

and

speech,

because it “affects what a person ‘must do . . . not what they may
or may not say.’”

(Doc. 115 at 7 (quoting Rumsfeld v. Forum for

Acad. & Inst’l Rights, Inc., 547 U.S. 47, 60 (2006) (emphasis in
original)).) They argue that “captures” generally does not involve
speech but concede it could.

(Doc. 110 at 28.)

Plaintiffs respond

that “there is no requirement a statute be perfectly crafted to
only encompass speech before it will be understood to be aimed at
First Amendment rights.”

(Doc. 114 at 14.)
29

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 The terms “uses” and “captures” are not defined in the Act.
When statutory words lack a technical meaning and are not defined
in the text, “they are construed in accordance with their ordinary
meaning” and “[c]ourts may and often do consult dictionaries for
such meanings.”

State v. Ludlum, 281 S.E.2d 159, 162 (N.C. 1981).

See Johnson v. Zimmer, 686 F.3d 224, 232 (4th Cir. 2012) (citation
and internal quotation marks omitted) (“The Court customarily
turn[s] to dictionaries for help in determining whether a word in
a statute has a plain or common meaning.”).

“Use” means generally

“[t]he act of putting something to work, or employing or applying
a thing, for any (esp. a beneficial or productive) purpose.”
Oxford

English

Dictionary

Online,

https://www.oed.com/view/Entry/220635?rskey=JQRSrL&result=1&isAd
vanced=false#eid.

It is also defined as “[t]he application or

employment of something.”

Use, Black’s Law Dictionary (9th ed.

2009).

While “use” as set out in subsection (b)(1) need not

involve

speech;

for

example,

an

individual

who

removes

an

employer’s data and relies on it to start his own competitive
business, the term itself can apply to speech.

One could “use”

the information gathered from the nonpublic areas of an employer’s
premises by publishing it or creating an expressive work based on
its

contents,

prohibition

on

making

the

prohibited

“captur[ing]”

Amendment concern.

more

action
plainly

“speech.”

The

generates

First

“Capture” is defined variously as “to take
30

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 prisoner; to catch by force,” “[t]o take (an opposing piece) [as
in chess],” and “[t]o represent, catch, or record (something
elusive, as a quality) in speech, writing, etc.”

Oxford English

Dictionary

Online,

https://www.oed.com/view/Entry/27660?rskey=Hy121K&result=2#eid.
It also means “to record in a permanent file.”
Dictionary

Merriam-Webster

Online,

https://www.merriam-

webster.com/dictionary/capture.

Thus, capturing can be read in

(b)(1) to prohibit physically obtaining an employer’s data or
information, but it can also prohibit the capturing of images via
camera or other similar devices.

See Seth F. Kreimer, Pervasive

Image Capture and the First Amendment: Memory, Discourse, and the
Right to Record, 159 U. Pa. L. Rev. 335, 387-392 (2011) (reasoning
that laws constraining image capture are not generally applicable
and are not free from First Amendment scrutiny).
conceded as much.

Intervenor has

(Doc. 110 at 28 (“[S]ubsection (b)(1) prohibits

‘captur[ing] or remov[ing] the employer’s data,’ and to ‘capture’
data reasonably includes taking an image of it.”).)
Absent a narrowing construction from North Carolina state
courts, federal courts are without power to adopt one “unless such
a construction is reasonable and readily apparent.” Boos v. Barry,
485 U.S. 312, 330 (1988).

While Defendants and Intervenor view

subsection (b)(1) as exclusively regulating conduct, it is clear
(indeed, conceded) that “capture” can cover speech.

Whether or

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 not subsection (b)(1) is generally applicable, at a minimum its
prohibition on speech is more than incidental.

Image capture, a

speech act in which Plaintiffs wish to engage, constitutes an
element of a (b)(1) claim.

Unlike in Food Lion where the torts of

trespass and breach of the duty of loyalty operated independently
of speech, the inclusion of speech as an element of a (b)(1) claim
goes beyond an incidental effect, and subsection (b)(1)’s burden
on speech is direct and requires First Amendment scrutiny.
That said, the court also cannot ignore the possible myriad
legitimate applications of subsection (b)(1).

The Act applies to

one who captures or removes and uses an employer’s “data, paper,
records, or any other documents.”

A person who captures, by

taking, and removes data or information and uses it in a nonspeech manner (e.g., by reading it, acting on its information,
etc.) falls within this subsection, and the First Amendment would
be of no concern.

To succeed on a facial challenge, Plaintiffs

must demonstrate that there are “no set of circumstances” in which
subsection (b)(1) can be validly applied or that it lacks any
plainly legitimate sweep.
n.5.8

See Educ. Media Co., 731 F.3d at 298

Plaintiffs cannot do so here.

Therefore, their First

Amendment challenge to (b)(1) can only be brought as-applied to

8

Plaintiffs may also raise facial challenges to a statute by showing
that is it overbroad. A separate overbreadth analysis is set out in
Part B.5 below.

32

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 their particular circumstances.
ii.
Subsections

(b)(2)

Subsections (b)(2) and (b)(3)
and

(b)(3)

both

create

individuals who, in some form, record images.

liability

for

Subsection (b)(2)

describes an act that exceeds a person’s authority, in relevant
part,

as

“record[ing]

employer’s premises.”

images

or

sound

occurring

N.C. Gen. Stat. § 99A-2(b)(2).

within

an

Subsection

(b)(3) defines exceeding one’s authority as placing an unattended
camera or surveillance device on an employer’s premises and “using
that device to record images or data.”
discussed

above,

recording

is

Id. § 99A-2(b)(3).

protected

speech,

and

As

these

provisions will proceed to the next step of the First Amendment
analysis.

Food Lion does not immunize these subsections because,

unlike the claims in that case, these subsections expressly single
out speech.

They are not generally applicable laws and will be

reviewed with the appropriate level of scrutiny.
iii. Subsection (b)(5)
Subsection

(b)(5)

creates

liability

for

acts

that

“substantially interfere[] with the ownership or possession of
real property.”
that

because

particularly

N.C. Gen. Stat. § 99A-2(b)(5).

the

Act

“is

communications

aimed
to

at

stopping

‘the

media,’

Plaintiffs argue
communications,
and

especially

communications by ‘private special interest organizations’” like
theirs, subsection (b)(5) should be read to restrict both the
33

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 gathering of information and use of that information.
11.)

(Doc. 99 at

In essence, Plaintiffs argue, because subsections (b)(1),

(b)(2), and (b)(3) are all directly aimed at speech and subsection
(b)(5) has been categorized as a catch-all provision, (b)(5) must
be understood to cover any speech that is not encompassed by (b)(1)
through (3).

(Doc. 114 at 17.)

Defendants argue that this ignores

the plain reading of the statute, citing State v. Beck, 614 S.E.2d
274, 277 (N.C. 2005), for the proposition that “[i]f the statutory
language is clear and unambiguous, the court eschews statutory
construction in favor of giving the words their plain and definite
meaning.”

(Doc. 115 at 12.)

They further argue that subsection

(b)(5) is directed at conduct as opposed to speech, again relying
on Rumsfeld.
(b)(5)

as

a

547 U.S. at 60.
catch-all

trespass holding.

Intervenor describes subsection

provision

consistent

with

Food

Lion’s

(Doc. 110 at 17.)

“[U]nless there is some ambiguity in the language of a
statute, a court’s analysis must end with the statute’s plain
language . . . .”

In re Sunterra Corp., 361 F.3d 257, 265 (4th

Cir. 2004) (citation and internal quotation marks omitted).
contrast

to

prohibited

previous
speech

subsections

acts,

which

subsection

prohibiting substantial interference.

specifically

(b)(5)

regulates

In

describe
conduct,

Speech is not singled out.

Facially, the law applies to speech and nonspeech in a neutral
manner.

Moreover, as with subsection (b)(1), Plaintiffs fail to
34

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 show that there are no set of circumstances in which (b)(5) can be
validly applied.

All sorts of non-speech acts can “substantially

interfere[] with the ownership or possession of real property,”
such as erecting a barrier or opening a gate to let livestock out.
Plaintiffs also fail to show that subsection (b)(5) lacks any
plainly legitimate sweep.
n.5.

See Educ. Media Co., 731 F.3d at 298

Plaintiffs’ First Amendment challenge to subsection (b)(5)

will therefore proceed on an as-applied basis.
b.

Level of Scrutiny

The next step of the First Amendment analysis is to determine
the

proper

level

of

scrutiny

to

apply

to

each

subsection.

Plaintiffs argue that the Act restricts speech based on its content
and purpose, and even more significantly, the viewpoint expressed.
They argue that the Act’s exceptions in subsection (e) “define its
character, and establish it is content-based” because it restricts
speech based on its function and shows that the Act is meant to
punish those who wish to disclose information outside of specific
government-approved channels. (Doc. 114 at 20.) As to subsections
(b)(1) and (b)(2), Plaintiffs argue that “[a] court could not
determine whether a communication was ‘disloyal’ except by knowing
what words were spoken” and that “‘breaching the duty of loyalty’
depends on the specifics of what is communicated.”

(Id. at 22.)

Defendants argue that the Act is content-neutral because it merely
regulates

“the

manner

in

which

information

is

obtained”

35

Case 1:16-cv-00025-TDS-JEP Document 138 Filed 06/12/20 Page 35 of 73

and

 liability “does not depend on the type of information obtained.”
(Doc. 115 at 13-14.)
neutral

because

information,

“it

all

Intervenor argues that the Act is contentapplies

to

unauthorized

all

impermissibly

recordings

made

by

obtained
unattended

electronic surveillance devices, and all recordings used to breach
the employee’s duty of loyalty, regardless of the content of the
information or the videos.”

(Doc. 116 at 20.)

Both Defendants

and Intervenor contend that because the Act does not single out
any

subset

of

messages

and

applies

equally

to

all

uses

of

information and all recordings used to breach an employee’s duty
of loyalty, it is viewpoint-neutral.

(Docs. 115 at 14; 116 at

18.)
Restrictions on speech are subject to either strict scrutiny
or intermediate scrutiny under the First Amendment.
Sys., 512 U.S. at 640-41.

Turner Broad.

Both content- and viewpoint-based

restrictions are subject to strict scrutiny.

Ysursa v. Pocatello

Educ. Ass’n., 555 U.S. 353, 358 (2009) (“Restrictions on speech
based on its content are presumptively invalid and subject to
strict scrutiny.”) (internal quotation marks omitted) (citing
Davenport v. Wash. Educ. Ass’n, 551 U.S. 177, 188 (2007); R.A.V.,
505 U.S. at 382).

Content-based restrictions on speech “target

speech based on its communicative content” and are presumptively
invalid.

Reed v. Town of Gilbert, 135 S. Ct. 2218, 2226 (2015).

Before a law can be deemed content-neutral, the court must first
36

Case 1:16-cv-00025-TDS-JEP Document 138 Filed 06/12/20 Page 36 of 73

 consider whether the law is content-based on its face, and then
consider whether the purpose and justification for the law are
content-based.

Id. at 2228.

In describing this two-pronged

inquiry, the Supreme Court stated:
Some facial distinctions based on a message are obvious,
defining regulated speech by particular subject matter,
and others are more subtle, defining regulated speech by
its function or purpose . . . .
Our precedents have
also recognized a separate and additional category of
laws that, though facially content neutral, will be
considered content-based regulations of speech: laws
that cannot be justified without reference to the
content of the regulated speech, or that were adopted by
the government because of disagreement with the message
[the speech] conveys.
Id. at 2227 (internal citation and quotation marks omitted).

See

Am. Ass’n of Political Consultants, Inc. v. FCC, 923 F.3d 159,
165-67 (4th Cir. 2019), cert. granted sub nom. Barr v. Am. Ass’n
of Political Consultants, Inc., 140 S. Ct. 812 (2020) (applying
Reed’s two-pronged inquiry).

In the same vein, viewpoint-based

restrictions

“‘an

on

discrimination,’

speech
and

are
‘[t]he

egregious

government

form

must

of

content

abstain

from

regulating speech when the specific motivating ideology or the
opinion or perspective of the speaker is the rationale for the
restriction.’”

Hardwick ex rel. Hardwick v. Heyward, 711 F.3d

426, 443 (4th Cir. 2013) (quoting Rosenberger v. Rector & Visitors
of University of Virginia, 515 U.S. 819, 829 (1995)).
While content- or viewpoint-based restrictions on speech are
subject to strict scrutiny, a law that is “neither content nor
37

Case 1:16-cv-00025-TDS-JEP Document 138 Filed 06/12/20 Page 37 of 73

 viewpoint based . . . need not be analyzed under strict scrutiny.”
McCullen v. Coakley, 573 U.S. 464, 485 (2014).

But a content-

neutral law does not escape scrutiny altogether.
Political Consultants, 923 F.3d at 165.

Am. Ass’n of

Content- and viewpoint-

neutral laws are reviewed under an intermediate scrutiny standard.
Turner Broad. Sys., 512 U.S. at 642.
i.

Subsections (b)(1) and (b)(2)

As discussed above, subsection (b)(1) creates liability for
an employee who “captures or removes [an] employer’s data, paper,
records, or any other documents and uses the information to breach
the person’s duty of loyalty to the employer.”
§ 99A-2(b)(1).

N.C. Gen. Stat.

Without deciding whether this subsection is a law

of general application, the court found that (b)(1) as applied to
Plaintiffs has more than an incidental impact on speech, and as
such is subject to at least intermediate scrutiny.
Indus.,

922

appropriate

F.3d

at

standard

209
for

(“[I]ntermediate
reviewing

incidentally impact speech . . . .”).

conduct

Capital Assoc.

scrutiny

is

regulations

the
that

However, subsections (b)(1)

and (b)(2) create liability for employees who use information or
recordings to “breach [their] duty of loyalty to [their] employer.”
N.C. Gen. Stat. § 99A-2(b)(1) and (b)(2).

As to the content- and

viewpoint- analysis, Defendants’ and Intervenor’s arguments, as
well as those of Plaintiffs, primarily concern whether reviewing
the content of the recording is necessary.

But this is not the

38

Case 1:16-cv-00025-TDS-JEP Document 138 Filed 06/12/20 Page 38 of 73

 only way a law can be content-based.

Here, liability under these

subsections is triggered by the purpose of speech, that is, to
breach a duty of loyalty.

While a more subtle form of content-

based distinction, regulating speech based on its function or
purpose is still a content-based restriction on speech.

Reed, 135

S. Ct. at 2227.
Defendants’

argument

that

the

Act

regulates

conduct

opposed to speech was addressed and rejected above.

as

Defendants

further argue that the Act allows anyone to use the recordings
gathered from an employer’s premises so long as they are not used
to breach a duty of loyalty.

(Doc. 115 at 13.)

But the condition

imposed is based on the purpose of the speech.

Intervenor argues

that “[w]hile the subsection (b)(2) prohibition applies only when
the employee uses the video to breach his duty of loyalty, that
does not require an examination of the content of the video but
rather of the purpose for which the recording is used.”
at 22) (emphasis added).

(Doc. 110

The same can be said for subsection

(b)(1).
The parties take differing views on whether the content of
the speech must be reviewed to determine whether it breaches a
duty of loyalty. But because the court finds that these provisions
of the Act regulate speech by its purpose, the court need not
address this argument.
based

and

will

be

Subsections (b)(1) and (b)(2) are content-

subject

to

strict

scrutiny.

See

Greater

39

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 Baltimore Ctr. for Pregnancy Concerns, Inc. v. Mayor & City Council
of Baltimore, 879 F.3d 101 (4th Cir. 2018) (applying heightened
scrutiny to an ordinance challenged as-applied); Wash. Post v.
McManus, 355 F. Supp. 3d 272 (D. Md.), aff'd, 944 F.3d 506 (4th
Cir.

2019)

(applying

strict

scrutiny

to

a

Maryland

statute

challenged on a First Amendment as-applied basis).
ii.

Subsection (b)(3)

Subsection (b)(3) prohibits placing an unattended camera or
recording device on an employer’s premises and “using that device
to

record

images

or

data.”

N.C.

Gen.

Stat.

§ 99A-2(b)(3).

Plaintiffs’ argument that subsection (b)(3) is content-based rests
on their belief that subsection (e) of the Act establishes that
the entire law is content-based.
argue

that

subsection

(b)(3)

(Doc. 114 at 20.)
“applies

to

all

Defendants
unauthorized

recordings made in nonpublic areas of an owner’s premises” and
that the content of the recordings is “irrelevant and immaterial.”
(Doc. 115 at 14.)

Intervenor agrees, arguing that (b)(3) is “a

blanket prohibition that applies without the need to examine the
message of the video.”

(Doc. 116 at 20.)

A review of the provision shows that it is neither contentnor viewpoint-based and is thus subject to intermediate scrutiny.
Liability for using an unattended camera to record images or data
does not define the regulated speech by subject matter.

The Act

does not prohibit the recording of agricultural facilities or
40

Case 1:16-cv-00025-TDS-JEP Document 138 Filed 06/12/20 Page 40 of 73

 research labs, but instead prohibits all unauthorized recording.
Similarly, the regulated speech is not defined by its function or
purpose.

And as Defendants and Intervenor argue, there is no need

to review the recording or consider its contents to find that
someone has engaged in what the subsection proscribes.

Subsection

(b)(3) could just as easily be used to prohibit the recording of
an

employee

birthday

gathering

as

it

could

to

prohibit

recording of practices at an agricultural facility.

the

The content

and viewpoint of the recordings captured by unattended cameras and
recording devices play no role in the applications of subsection
(b)(3).
Because subsection (b)(3) is content- and viewpoint-neutral,
it is subject to intermediate scrutiny.
iii. Subsection (b)(5)
As discussed above, subsection (b)(5) prohibits “act[s] that
substantially interfere[] with the ownership or possession of real
property.”

N.C. Gen. Stat. § 99A-2(b)(5).

It does not target

speech. As applied to Plaintiffs, however, it necessarily ensnares
First

Amendment

protected

activity

because

the

act

that

“substantially interferes” with the ownership or possession of
real property is the recording and image capture itself.
respect, it differs from the torts in Food Lion.9

9

In this

In this context,

In Food Lion, the trespass occurred independent of the recording, and

41

Case 1:16-cv-00025-TDS-JEP Document 138 Filed 06/12/20 Page 41 of 73

 subsection (b)(5) is subject to intermediate scrutiny. See Capital
Assoc. Indus., 922 F.3d at 209 (“[I]ntermediate scrutiny is the
appropriate

standard

incidentally

impact

for

reviewing

speech . . . .

conduct
For

regulations

laws

with

that

only

an

incidental impact on speech, intermediate scrutiny strikes the
appropriate

balance

between

the

states’

police

powers

and

individual rights.”); see also Ross v. Early, 746 F.3d 546, 554
(4th

Cir.

2014)

(applying

intermediate

scrutiny

where

“the

parties . . . stipulated that the Policy [designating areas where
protests could be made] is ‘generally applicable’”).
c.

Application of Scrutiny

As noted above, subsections (b)(1) and (b)(2) are subject to
strict scrutiny; and subsections (b)(3), and (b)(5) are subject to
intermediate scrutiny.

Throughout their briefing, Defendants and

Intervenor failed to defend the Act on strict scrutiny grounds,
instead arguing that at best intermediate scrutiny applies. (Docs.
115 at 14; 116 at 22.)

Thus, they have failed to carry their

burden as to subsections (b)(1) and (b)(2).

However, as detailed

below, even under intermediate scrutiny each of the challenged
provisions fails.

the breach of duty of loyalty required conduct adverse to the employer’s
interests. Subsection (b)(5), in contrast, could be breached merely by
making the recording.

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Case 1:16-cv-00025-TDS-JEP Document 138 Filed 06/12/20 Page 42 of 73

 i.

Strict Scrutiny

As content-based restrictions on speech, subsections (b)(1)
and (b)(2) require review under the exacting strict scrutiny
standard.

As to Plaintiffs’ as-applied challenge to subsection

(b)(1), the court has no detailed account of how, or even whether,
the Property Protection Act would be enforced against Plaintiffs,
because the Act was challenged prior to enforcement.

Educ. Media

Co., 731 F.3d at 298 n.5. (citation and internal quotation marks
omitted) (“[A]n as-applied challenge is based on a developed
factual record and the application of a statute . . . .”).
court

is

limited

enforcement.

to

a

largely

undeveloped

record

This

regarding

However, Plaintiffs have “alleged an intention to

engage in . . . conduct arguably affected with a constitutional
interest, a credible threat that the Act will be enforced against
them if they proceed with their plans, and that they have refrained
from proceeding for fear of being subjected to the [Act’s] severe
civil remedies.”

PETA, 737 F. App’x at 130 (citation and internal

quotation marks omitted).

The court will look to Plaintiffs’

declarations of the acts they would engage in if not for their
fear of being subjected to the Act.
101-2, 101-3, 101-4, 101-5, 101-6.)

(Docs. 100-1, 100-2, 101-1,
See Milavetz, Gallop &

Milavetz, P.A. v. United States, 559 U.S. 229, 249 n.7 (2010)
(finding that in the absence of exhibits or other evidence to
ground the analysis of a pre-enforcement as-applied challenge, the
43

Case 1:16-cv-00025-TDS-JEP Document 138 Filed 06/12/20 Page 43 of 73

 court would rely on the party’s general claims).
Plaintiff

ALDF

has

detailed

its

use

of

Specifically,

photographs

during

undercover investigations (Doc. 100-2 at 4), and both PETA and
ALDF have asserted their intention to disseminate the information
they collect during their undercover investigations (Docs. 100-1
at 9-10; 100-2 at 8-9).

Rather than argue that the Act impacts

differently situated Plaintiffs in differing ways,

Plaintiffs

ASPCA, CFS, Farm Forward, Farm Sanctuary, FWW, and GAP, who claim
to merely disseminate the information that others obtain from such
investigations, have not averred an intention to engage in acts
prohibited by subsection (b)(1).

Consequently, they have not

articulated a basis for challenging this provision as-applied.
To survive strict scrutiny, the State bears the burden of
proving that a law’s restriction on speech “furthers a compelling
interest and is narrowly tailored to achieve that interest.”
Citizens United, 558 U.S. at 340 (citation and internal quotation
marks omitted); San Antonio Indep. Sch. Dist. v. Rodriguez, 411
U.S. 1, 16-17 (1973) (placing the burden on the government).

To

be narrowly tailored, a law must be “the least restrictive means
of achieving a compelling state interest.”

McCullen, 573 U.S. at

478 (citing United States v. Playboy Entm’t Grp., Inc., 529 U.S.
803,

813

(2000)).

overinclusive

by

“Moreover,
unnecessarily

the

restriction

circumscrib[ing]

cannot

be

protected

expression, or underinclusive by leav[ing] appreciable damage to
44

Case 1:16-cv-00025-TDS-JEP Document 138 Filed 06/12/20 Page 44 of 73

 [the government’s] interest unprohibited.”

Cahaly v. Larosa, 796

F.3d 399, 405 (4th Cir. 2015) (internal citations and quotation
marks omitted) (citing Republican Party of Minn. V. White, 536
U.S. 765, 775 (2002) (restriction cannot be overinclusive); Reed,
135 S. Ct. at 2232 (restriction cannot be underinclusive)).
Defendants and Intervenor have not put forward any compelling
interest, and in fact did not attempt to defend the Act under a
strict scrutiny analysis.

(Doc. 115 at 14; Doc. 116 at 22.)

While

strict scrutiny must not be “strict in theory, but fatal in fact,”
Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 237 (1995)
(citation omitted), where the government posits no compelling
interest and does not attempt to show that a law is narrowly
tailored, as is its burden, it cannot succeed.
Defendants and Intervenor have not shown that subsection
(b)(1) or (b)(2) are narrowly tailored to further a compelling
state interest.

These provisions are therefore unconstitutional

under the First Amendment to the United States Constitution.
ii.

Intermediate Scrutiny

The remaining subsections, (b)(3) and (b)(5), are subject to
intermediate scrutiny.

Plaintiffs argue that these provisions

fail because they are under-inclusive and because intermediate
scrutiny requires “actual evidence supporting [the] assertion that
a speech restriction does not burden substantially more speech
than necessary.”

(Doc. 114 at 25 (quoting Reynolds v. Middleton,
45

Case 1:16-cv-00025-TDS-JEP Document 138 Filed 06/12/20 Page 45 of 73

 779 F.3d 222, 229 (4th Cir. 2015)).)

They note that both the

legislative record as well as Defendants’ and Intervenor’s briefs
are devoid of evidence showing the Act is narrowly tailored.
Further still, they argue, the State must prove that it tried
unsuccessfully

to

achieve

its

stated

interest

through

other

methods, such as the enforcement of existing laws, which was not
done. (Id. at 26.)

Finally, Plaintiffs argue there is no scienter

requirement connected with the prohibited speech, which is the use
of information or a recording.

(Id. at 27.)

Defendants disagree,

arguing that the Act’s express purpose is to protect property
rights, a legitimate interest, and that it is narrowly tailored to
further that interest.
the

inclusion

of

a

In support, they offer two points: first,
scienter

requirement,

which

they

argue

“substantially limits [the Act’s] scope and application;” and
second, the contention that the Act “only regulates specific
instances of conduct that result in a legally cognizable harm to
the property owner.”

(Doc. 115 at 15.)

They, and Intervenor,

further argue that the Act leaves open ample alternative channels
of communication.

(Id.; Doc. 116 at 23.)

Plaintiffs’ challenge to subsection (b)(5) is proceeding asapplied.

Although the record is not as robust as in an enforcement

action, there is ample evidence in the form of sworn declarations
discussing the undercover investigations and associated acts that
Plaintiffs would engage in but for fear of liability under the
46

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 Property Protection Act.

(Docs. 100-1, 100-2, 101-1, 101-2, 101-

3, 101-4, 101-5, 101-6.)
arguments,

the

court

While all Plaintiffs adopt the same

will

consider

each

Plaintiff’s

declarations in construing the as-applied challenge.

specific
The acts

that Plaintiffs PETA and ALDF have disclosed include obtaining
employment with various facilities and laboratories and disclosing
the lawful and unlawful actions of their employers and co-workers
to other entities who release that information.
9-10; 100-2 at 8-9.)

(Docs. 100-1 at

In construing the as-applied challenge to

subsection (b)(5), these are the prohibited “act[s].”

As to

Plaintiffs ASPCA, CFS, Farm Forward, Farm Sanctuary, FWW, and GAP,
they have not alleged any intention to gain access to the nonpublic
areas of an employer’s premises, but instead have indicated their
desire to use the information acquired by PETA and ALDF.

The

challenge

the

to

(b)(5)

is

proceeding

as-applied,

but

given

declarations of these Plaintiffs, their actions do not fall within
the subsection’s prohibitions.
Under intermediate scrutiny, the State bears the burden of
proving that the law is “narrowly tailored to serve a significant
government interest and leave[s] open ample alternative channels
of

communication.”

Reynolds,

779

F.3d

at

225-26

(quoting

Clatterbuck v. City of Charlottesville, 708 F.3d 549, 555 (4th
Cir. 2013), abrogated on other grounds by Reed, 135 S. Ct. at 222829).

A

law

is

narrowly

tailored

if

it

“does

not

‘burden

47

Case 1:16-cv-00025-TDS-JEP Document 138 Filed 06/12/20 Page 47 of 73

 substantially
government’s

more

speech

legitimate

than

is

interests.’”

McCullen, 573 U.S. at 486).

necessary
Id.

to
at

further
226

the

(quoting

The law cannot be overinclusive and

“regulate expression in such a manner that a substantial portion
of the burden on speech does not serve to advance its goals.”
v. Rock Against Racism, 491 U.S. 781, 799 (1989).

Ward

However, “so

long as the means chosen are not substantially broader than
necessary

to

achieve

the

government’s

interest . . .

the

regulation will not be invalid simply because a court concludes
that the government’s interest could be adequately served by some
less-speech-restrictive alternative.”

Id. at 800.

Defendants and

Intervenor argue that the purpose of the Property Protection Act
is to protect property rights, and they cite to statements made by
the Act’s sponsors while debating the legislation.10

(Doc. 121 at

16-17.)
The Supreme Court in McCullen recognized that protecting
property rights is a legitimate government interest.

573 U.S. at

486-87 (citation and internal quotation marks omitted) (“We have,

10

Statements from legislators include: “[P]roperty protections [sic] is
a serious issue that North Carolina companies of all sizes and all
industries face on a daily basis” (Doc. 107-5 at 3); “[C]urrently, North
Carolina’s weak property protection laws put businesses as well as the
privacy of their customers at serious risk” (id.); “North Carolina
employers need stronger measures to protect their data and merchandise
against corporate espionage, organized retail theft, and internal data
breaches” (id.); the Property Protection Act “codifies and strengthens
North Carolina trespass law to better protect property owners’ rights”
(id. at 3-4).

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 moreover, previously recognized the legitimacy of the government’s
interest[] in . . . protecting property rights . . . .”).
government need not typically provide evidence of it.
2020 WL 3088108, at *8.

And the
Billups,

Defendants and Intervenor have therefore

satisfied that requirement.
That does not end the inquiry, however.

Defendants and

Intervenor “must demonstrate the [Act] ‘materially advances an
important or substantial interest by redressing past harms or
preventing future ones.’” Ross, 746 F.3d at 556 (quoting Satellite
Broad. & Commc’ns Ass’n v. FCC 275 F.3d 337, 356 (4th Cir. 2001)).
While a “panoply of empirical evidence” is not required, Defendants
and Intervenor “must nonetheless make some evidentiary showing
that the recited harms are real, not merely conjectural, and that
the [Act] alleviate[s] these harms in a direct and material way.”
Id. (internal quotation marks omitted) (quoting Satellite Broad.,
275 F.3d at 356).

Further, to demonstrate narrow tailoring, they

must present “actual evidence supporting [their] assertion that
[the] speech restriction[s] [do] not burden substantially more
speech than necessary.”

Reynolds, 779 F.3d at 228-29.

Beyond

that, Defendants and Intervenor must “prove that [the government]
actually tried other methods to address the problem.”
(emphasis in original).

Id. at 231

See McCullen, 573 U.S. at 496 (“Given the

vital First Amendment interests at stake, it is not enough for
[the Government] simply to say that other approaches have not
49

Case 1:16-cv-00025-TDS-JEP Document 138 Filed 06/12/20 Page 49 of 73

 worked.”).

“[T]he government must show [] that it seriously

undertook to address the problem with less intrusive tools readily
available to it, and must demonstrate that [such] alternative
measures . . . would fail to achieve the government’s interests,
not simply that the chosen route is easier.”

Reynolds, 779 F.3d

at 231-32 (emphasis in original) (internal citations and quotation
marks omitted).
Defendants

and

Intervenor

statements discussing the Act.

point

to

legislators’

(Doc. 121 at 16.)

floor

They argue that

legislators “spoke about the need for the law and their efforts to
narrowly tailor it so that it would not burden more speech than
necessary.”

(Id.)

Statements made from the floor during the

April 22, 2015 debate, and partially cited by Defendants and
Intervenor, include the following:
So first, why is this bill needed? Well, property
protections [sic] is a serious issue that North Carolina
companies of all sizes and all industries face on a daily
basis . . . .
North Carolina employers need stronger
measures to protect their data and merchandise against
corporate espionage, organized retail theft, and
internal data breaches.
And this act puts greater
protection in place to safeguard businesses’ property
from unlawful access and provide appropriate recourse
against
individuals
that
engage
in
unauthorized
activities in non-public areas of business. So what’s
the bill really do? Well, first of all, it codifies and
strengthens North Carolina trespass law to better
protect property owners’ rights. And it puts teeth into
North Carolina trespass law by providing up to $5000 per
day penalty for a violation.11
11

The Act actually provides $5,000 per day in exemplary damages, not “up
to” $5,000. N.C. Gen. Stat. § 99A-2(d)(4).

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 (Doc. 107-5 at 3-4.)
These statements do in fact identify a problem and set forth
a solution to curtail it in the future.

However, the evidence

Defendants and Intervenor cite does not rise to the level dictated
by Ross, particularly that the “recited harms are real, not merely
conjectural, and that the [Act] alleviate[s] these harms in a
direct and material way.”

746 F.3d at 556 (citation and internal

quotation marks omitted).

And while the statements above suggest

that the Act strengthens North Carolina trespass law, there is no
indication in the record that property protection under North
Carolina’s

existing

trespass

law

was

unsuccessful.

Without

engaging in a review of all North Carolina statutes available to
address property protection, obvious candidates are North Carolina
General

Statute

§ 99A-1,

entitled

“Recovery

of

damages

for

interference with property rights,”12 and the North Carolina tort

12

N.C. Gen. Stat. § 99A-1 provides:
§ 99A-1. Recovery of damages for interference with property rights.
Notwithstanding any other provisions of the General Statutes
of North Carolina, when personal property is wrongfully taken
and carried away from the owner or person in lawful possession
of such property without his consent and with the intent to
permanently deprive him of the use, possession and enjoyment
of said property, a right of action arises for recovery of
actual and punitive damages from any person who has or has
had, possession of said property knowing the property to be
stolen.
An agent having possession, actual or constructive, of
property lawfully owned by his principal, shall have a right
of action in behalf of his principal for any unlawful
interference with that possession by a third person.

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 of trespass (upheld in Food Lion, where videotaping was involved)13
as examples of existing laws that Defendants and Intervenor have
not shown to be ineffective in protecting property rights.
While Defendants and Intervenor have identified a legitimate
governmental interest in protecting private property, they have
failed

to

demonstrate

through

evidence

that

the

Property

Protection Act is narrowly tailored to further that interest or
that existing laws, such as trespass, are insufficient to address
the problem.

See Billups, 2020 WL 3088108, at *12 (finding city

failed to provide evidence before enacting ordinance that it
attempted less restrictive means).

Because subsections (b)(3) and

(b)(5) are not narrowly tailored, the court “need not consider
whether

the

Act

communication.”

leaves

open

ample

alternative

McCullen, 573 U.S. at 496 n.9.

channels

of

And because

In cases of bailments where the possession is in the bailee,
a trespass committed during the existence of the bailment
shall give a right of action to the bailee for the
interference with his special property and a concurrent right
of action to the bailor for the interference with his general
property.
Any abuse of, or damage done to, the personal property of
another or one who is in possession thereof, unlawfully, is
a trespass for which damages may be recovered.
13

“The elements of trespass to real property are: (1) possession of the
property by the plaintiff when the alleged trespass was committed; (2)
an unauthorized entry by the defendant; and (3) damage to the plaintiff
from the trespass.” Keyzer v. Amerlink, Ltd., 618 S.E.2d 768, 772 (N.C.
Ct. App. 2005) (citation and internal quotation marks omitted).
A
trespasser is liable for all damages proximately caused by his or her
wrongful entry. Smith v. VonCannon, 197 S.E.2d 524, 528 (N.C. 1973).
As held in Food Lion, the making of surreptitious videotapes would not
provide a defense under the First Amendment.

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 subsections (b)(1) and (b)(2) suffer from the same lack of showing,
were they similarly subject to intermediate scrutiny they would
suffer the same fate.
*

*

*

In summary, Defendants and Intervenor have not met their
burden under the strict scrutiny analysis as to subsections (b)(1)
and (b)(2) of the Act, nor have they met it under the intermediate
scrutiny analysis as to any of the challenged subsections.
the plans of

Plaintiffs

investigations

of

Given

PETA and ALDF to conduct undercover

potential

employers,

the

prohibitions

in

subsections (b)(1) and (b)(5) are unconstitutional as applied to
the speech they regularly engage in, as detailed in their sworn
declarations.

As

to

subsections

(b)(2)

and

(b)(3),

these

provisions will always target speech, and speech will always be
the activity that triggers liability.
changes

the

fact

that

these

No set of circumstances

subsections,

as

written,

are

unconstitutional under the First Amendment, and as such, are
facially invalid.

Where a statute is unconstitutional in every

scenario, the appropriate remedy is to strike down the law on its
face.

See Citizens United, 558 U.S. at 331 (finding that the

distinction between facial and as-applied challenges informs only
the

choice

of

remedy

and

not

what

must

be

alleged

in

the

complaint).
The court therefore finds that subsections (b)(1) and (b)(5)
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 of the Act are unconstitutional as-applied and subsections (b)(2)
and (b)(3) are unconstitutional both facially and as-applied.

See

Edwards v. Dist. of Columbia, 755 F.3d 996, 1009 (D.C. Cir. 2014)
(finding a law that lacked narrow tailoring was not unique to the
challengers and invalidating it both facially and as-applied).
Because subsections (b)(2) and (b)(3) do not survive a facial
challenge, Plaintiffs’ remaining challenges are moot and need not
be addressed.

However, Plaintiffs also raise a facial challenge

to subsections (b)(1) and (b)(5) on both overbreadth and Fourteenth
Amendment grounds, and those challenges will be addressed below.
5.

Overbreadth Analysis

Plaintiffs further challenge subsections (b)(1) and (b)(5)
facially as unconstitutionally overbroad.

They argue that the Act

“reaches numerous other First Amendment protected activities in
addition to Plaintiffs’ undercover investigations,” such as the
reporting of crimes.

(Doc. 114 at 27-29.)

They further argue

that there is a realistic danger that the Act will compromise the
First Amendment rights of parties not before the court and that
“[b]alancing

the

Law’s

‘legitimate’

applications

against

its

unconstitutional ones also tilts decidedly in Plaintiffs’ favor.”
(Id. at 29.)

Defendants argue that Plaintiffs fail to identify

the alleged variety of First Amendment protected activity that the
Act penalizes, but instead “merely offer a couple of extreme
hypothetical situations in which they theorize someone could be
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 found liable under the statute.”

(Doc. 115 at 15-16.)

They

contend that the Act can be applied in “many ways that are
constitutional – including many applications that do not involve
protected speech at all.” (Id. at 16.) Further, Defendants assert
that “Plaintiffs cannot meet their burden of demonstrating ‘a
substantial number’ of unconstitutional applications, both ‘in an
absolute sense’ and ‘relative to the statutes plainly legitimate
sweep.’”

(Id. at 18 (citing United States v. Williams, 553 U.S.

285, 292 (2008)).)
The overbreadth doctrine allows litigants “to challenge a
statute not because their own rights of free expression are
violated, but because of a judicial prediction or assumption that
the statute’s very existence may cause others not before the court
to refrain from constitutionally protected speech or expression.”
Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973).

“[A] plaintiff

asserting a facial challenge may . . . prevail if he or she show[s]
that the law is overbroad because a substantial number of its
applications

are

unconstitutional,

statute’s plainly legitimate sweep.”

judged

in

relation

to

the

Educ. Media Co., 731 F.3d at

298 n.5 (citation and internal quotation marks omitted).

If a

plaintiff makes this showing, then the law is “invalid ‘until and
unless a limiting construction or partial invalidation so narrows
it

as

to

remove

the

seeming

threat

constitutionally protected expression.’”

or

deterrence

to

Doe v. Cooper, 842 F.3d

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 833, 845 (4th Cir. 2016) (quoting Virginia v. Hicks, 539 U.S. 113,
118-19 (2003)).

“Although substantial overbreadth is not readily

reduced to a mathematical formula, there must be a realistic danger
that the statute itself will significantly compromise recognized
First Amendment protections of parties not before the Court for it
to be facially challenged on overbreadth grounds.”

Id. (internal

quotation marks omitted) (citing Members of the City Council of
L.A. v. Taxpayers for Vincent, 466 U.S. 789, 800–01 (1984)).

“The

‘mere fact that one can conceive of some impermissible applications
of a statute is not sufficient to render it susceptible to an
overbreadth challenge.’”

Williams, 553 U.S. at 303 (quoting

Taxpayers for Vincent, 466 U.S. at 800).
“Facial challenges are disfavored,” Grange, 552 U.S. at 450,
and

“[d]eclaring

manifestly,

a

strong

statute

unconstitutionally

medicine,’

and

should

sparingly and only as a last resort.’”

be

overbroad

‘is,

‘employed . . .

Am. Entertainers, LLC v.

City of Rocky Mount, 888 F.3d 707, 715 (4th Cir. 2018) (quoting
Broadrick, 413 U.S. at 613).

Further, “it is impossible to

determine whether a statute reaches too far without first knowing
what the statute covers.”

Williams, 553 U.S. at 293.

The court

has found subsections (b)(1) and (b)(5) of the Act unconstitutional
as applied to Plaintiffs. Where Plaintiffs “capture” an employer’s
data through image capture or “use” information they have acquired
by engaging in protected speech, the First Amendment is implicated
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 and subsection (b)(1) is unconstitutional as to those acts.

And

the “substantial[] interfere[nce]” prohibited in subsection (b)(5)
does not extend facially to cover the speech in which Plaintiffs
engage.

Considering the plainly legitimate sweep of subsections

(b)(1) and (b)(5), and given where the statute does not reach, the
court finds that the Act does not cover a substantial amount of
protected activity to render it overbroad.
C.

Fourteenth Amendment

Plaintiffs also argue that subsections (b)(1) and (b)(5) are
unconstitutionally vague and violate the Due Process and Equal
Protection Clauses of the Fourteenth Amendment.
2.)

(Doc. 98 at 1-

Defendants and Intervenor argue that the Act is not vague and

was enacted to protect property rights, not out of animus for any
particular group.
1.

(Docs. 115 at 18-24; 116 at 24-27.)

Vagueness Analysis

Plaintiffs argue that subsections (b)(1) and (b)(5) fail to
provide a person of ordinary intelligence fair notice of what is
prohibited,

in

violation

Fourteenth Amendment.

of

the

Due

(Doc. 99 at 18.)

Process

clause

of

the

As to subsection (b)(1),

they argue that “duty of loyalty” has no definition and that North
Carolina

courts

only

recognize

the

duty

in

fiduciary

relationships, not the employer-employee relationship contemplated
in the Act.

(Id. at 18-19.)

To Plaintiffs, “there is no standard

for what conduct falls within subsection[] (b)(1) . . ., enabling
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 employers to invoke the provision[] for any covered activity they
deem disloyal.”

(Id. at 19.)

As to subsection (b)(5), which

covers activities that “substantially interfere with the ownership
or possession” of property, Plaintiffs contend that the Act does
not define those terms.

Moreover, they argue, subsection (b)(5)

does not set forth what type of interference falls within its grasp
and does not speak to who determines whether that interference is
“substantial.”

(Id.)

Defendants and Intervenor argue the Act

provides adequate notice of what conduct is prohibited.
at 19.)

(Doc. 121

They urge that North Carolina courts have given meaning

to the phrase “duty of loyalty,” but regardless, the applicable
test is whether the allegedly vague terms “have an ordinary and
common sense meaning.”

(Id.)

To that end, they assert that “‘duty

of loyalty’ simply means that an employee has an obligation not to
act in a manner adverse to his employer’s interest” and that
“‘substantially interfere’ means to hinder or impede to a great or
significant extent.”

(Id. at 20.)

“The void for vagueness doctrine is rooted in the Due Process
Clause of the Fifth and Fourteenth Amendments.”

Manning v.

Caldwell for City of Roanoke, 930 F.3d 264, 272 (4th Cir. 2019)
(en banc).

Laws that “fail[] to give a person of ordinary

intelligence

fair

notice

that

his

contemplated

conduct

is

forbidden by the statute, or [are] so indefinite that [they]
encourage[] arbitrary and erratic [enforcement]” are void under
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 the Due Process Clause of the Fourteenth Amendment.
Franklin,

439

U.S.

379,

quotation marks omitted).

390

(1979)

(internal

Colautti v.

citations

and

However, “the law is full of instances

where a man’s fate depends on his estimating rightly, that is, as
the jury subsequently estimates it, some matter of degree.”
v. United States, 229 U.S. 373, 377 (1913).

Nash

See also Doe, 842

F.3d at 842 (“When applying the constitutional vagueness doctrine,
the Supreme Court distinguishes between statutes that ‘require[]
a person to conform his conduct to an imprecise but comprehensible
normative

standard’

and

those

that

specify

‘no

standard

of

conduct.’”) (quoting Coates v. City of Cincinnati, 402 U.S. 611,
614 (1971)).

Addressing vagueness, the Supreme Court has said

“[w]here a statute’s literal scope, unaided by a narrowing state
court interpretation, is capable of reaching expression sheltered
by the First Amendment, the doctrine demands a greater degree of
specificity than in other contexts.”

Parker v. Levy, 417 U.S.

733, 752 (1974) (quoting Smith v. Goguen, 415 U.S. 566, 573
(1974)).

In addition, while a greater degree of specificity is

needed in the First Amendment context, civil statutes require less
clarity than those imposing criminal penalties.
at 272.

Manning, 930 F.3d

Statutes that impose quasi-criminal penalties, however,

are subject to a stricter test for vagueness.

Id. at 273.

Here, the Property Protection Act is a civil statute that
provides, in addition to compensatory damages, a $5,000 per-day
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 penalty for violations as well as an award of attorneys’ fees.
Cf. Mobil Oil Corp. v. Att’y Gen. of Va., 940 F.2d 73, 75 (4th
Cir. 1991) (in pre-enforcement challenge to the Virginia Petroleum
Products Franchise Act, noting its “stiff civil remedy” of $2,500
in liquidated damages, actual damages, and attorneys’ fees).

The

less demanding test of vagueness ordinarily accorded a civil
statute must therefore take into account the substantial exemplary
damages associated with a violation of the Act.
As

written,

subsection

(b)(1)

prohibits

using

gathered

information “to breach [one’s] duty of loyalty to the employer.”
N.C. Gen. Stat. § 99A-2(b)(1).

Defendants argue that duty of

loyalty means “an employee has an obligation not to act in a manner
adverse to his employer’s interest.”

(Doc. 121 at 20.)

They also

suggest that North Carolina courts have “described the concept
generally in several cases.”

(Doc. 110 at 27.)

In Dalton v. Camp,

the North Carolina Supreme Court intimated that the duty of loyalty
exists in the fiduciary context, stating “[a]s for any claim
asserted . . . for breach of a duty of loyalty (in an employmentrelated

circumstance)

outside

the

purview

of

a

fiduciary

relationship, we note from the outset that: (1) no case cited by
plaintiff

recognizes

or

supports

the

existence

of

such

an

independent claim, and (2) no pattern jury instruction exists for
any such separate action.”

548 S.E.2d at 708.

In discussing two

cases a litigant relied on, specifically McKnight v. Simpson’s
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 Beauty Supply, Inc., 358 S.E.2d 107 (N.C. Ct. App. 1987), and In
re Burris, 140 S.E.2d 408 (N.C. 1965) (per curiam), the court
stated,

“if

McKnight

and

Burris

indeed

serve

to

define

an

employee’s duty of loyalty to his employer, the net effect of their
respective holdings is limited to providing an employer with a
defense to a claim of wrongful termination.”
at 709.

Dalton, 548 S.E.2d

While the existence of an independent cause of action for

breach of duty of loyalty was not at issue in McKnight and Burris,
taken together they may define what the duty of loyalty means in
an employment context.

See Burris, 140 S.E.2d at 410 (stating

“[w]here an employee deliberately acquires an interest adverse to
his employer, he is disloyal”);

McKnight, 358 S.E.2d at 109

(stating every employee must “serve his employer faithfully and
discharge

his

attention”).

duties

with

reasonable

diligence,

care

and

As the breach of such duty has historically been

sufficient to serve as a defense to a wrongful termination action,
it cannot be said to have an historical basis of vagueness.
Subsection (b)(1) is explicit in what is prohibited.

Whether

the proper definition stems from the common meaning advanced by
Defendants or the synthesized definition from the North Carolina
state courts, the “duty of loyalty” is what may not be breached.
As

stated

above,

“what

renders

a

statute

vague

is

not

the

possibility that it will sometimes be difficult to determine
whether the incriminating fact it establishes has been proved; but
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 rather

the

indeterminacy

Williams, 553 U.S. at 306.

of

precisely

what

that

fact

is.”

It is clear what fact creates liability

under the Act, the breach of the duty of loyalty.

Any subsequent

difficulties or close calls in deciding whether a breach has in
fact

occurred

does

not

amount

to

a

vagueness

issue.

While

construing the Act to have one defined meaning might add clarity,
“federal courts are without power to adopt a narrowing construction
of a state statute unless such a construction is reasonable and
readily

apparent.”

Virginia

Soc’y

for

Human

Life,

Inc.

v.

Caldwell, 152 F.3d 268, 270 (4th Cir. 1988) (emphasis in original)
(citation and internal quotation marks omitted).

See also United

States v. Thirty-Seven (37) Photographs, 402 U.S. 363, 369 (1971)
(stating federal courts “lack jurisdiction authoritatively to
construe state legislation”). But the lack of a precise definition
of a prohibited act does not render a law void for vagueness.

See

United States v. Shrader, 675 F.3d 300, 310 (4th Cir. 2012)
(internal

citations

and

quotation

marks

omitted)

(describing

vagueness tests to be “practical rather than hypertechnical . . .
and when a statute fails to provide an explicit definition,
[courts]

may

resort

to

ordinary

meaning

and

common

sense,

considering whether the statute conveys sufficiently definite
warning as to the proscribed conduct when measured by common
understanding and practices.”).
As the court has noted, subsection (b)(5) does not facially
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 target First Amendment-protected activity.

Subsection (b)(5)’s

prohibition on “substantial” interference is a matter of degree.
“What renders a statute vague is not the possibility that it will
sometimes be difficult to determine whether the incriminating fact
it establishes has been proved; but rather the indeterminacy of
precisely

what

that

fact

is.”

Williams,

553

U.S.

at

306.

Interference itself is not a term or concept that fails to give
fair notice of what is prohibited.

Moreover, the subsection

requires more - substantial interference - with such ownership or
possession; mere interference is insufficient.

Subsection (b)(5)

provides a comprehensive normative standard, regardless of its
relative imprecision.
Plaintiffs further argue that the Act does not specify who
determines whether the interference is substantial.
not an issue of vagueness.

But this is

The Act establishes a civil remedy

against individuals who engage in certain acts that exceed their
authority.

And while the initial determination of whether there

has been substantial interference is made by the owner of the
premises (who may decide whether to sue), it is ultimately a
factfinder, whether judge or jury, that will determine whether a
particular act satisfies the requirements under the law.

On

balance, the court concludes that subsection (b)(5) is not facially
void for vagueness, as a host of trespass activity could fall

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 within its terms.14

Further couching the application and aiding

in the interpretation of subsection (b)(5) is subsection (a)’s
requirement

that

acts

done

in

excess

of

one’s

authority

be

committed following the intentional accessing of the nonpublic
areas of another’s premises.

This intent requirement will aid

Plaintiffs in determining whether their actions fall within the
scope of the statute.
In sum, the challenged provisions, subsections (b)(1) and
(b)(5), are not impermissibly vague

as a facial matter,

and

Plaintiffs’ motion for summary judgment will be denied.
2.

Equal Protection Analysis

Plaintiffs challenge the Act on the ground that it violates
the Equal Protection Clause of the Fourteenth Amendment.

Relying

heavily on United States v. Windsor, 570 U.S. 744 (2013), they
argue that the legislative history and veto statement of the Act
make it clear that it was enacted to punish animal rights advocacy
organizations.

(Doc. 99 at 19.)

In Plaintiffs’ view, the Act was

not necessary, given the laws on the books, and was designed to
target organizations like those of Plaintiffs.
position

that

the

Act

was

passed

out

of

To support their

animus,

highlight certain statements by its sponsors.

Plaintiffs

Defendants argue

14

Other laws have broad elements of proof, such as North Carolina’s
Unfair and Deceptive Trade Practices Act, N.C. Gen. Stat. § 75-1.1, which
provides for treble damages and attorneys’ fees for “unfair” and
“deceptive” conduct.

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 that the Act does not violate the Equal Protection Clause because
it does not burden a fundamental right, applies equally to all
individuals,

and

is

rationally

related

governmental interest.

(Doc. 121 at 20.)

statements

by

identified

Plaintiffs,

to

a

legitimate

In contrast to the

Defendants

point

to

statements by the Act’s sponsors indicating a desire to protect
private property.

(Id. at 20-21.)

Finally, Defendants argue the

text of the Act does not create classifications but instead applies
evenhandedly to every individual.
The Equal Protection Clause of the United States Constitution
dictates that no State shall “deny to any person within its
jurisdiction the equal protection of the laws.” U.S. Const. amend.
XIV, § 1.

“To succeed on an equal protection claim, a plaintiff

must first demonstrate that he has been treated differently from
others with whom he is similarly situated and that the unequal
treatment

was

discrimination.”

the

result

of

intentional

or

purposeful

King v. Rubenstein, 825 F.3d 206, 220 (4th Cir.

2016) (quoting Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir.
2001)).

The vast majority of Equal Protection challenges are

subject to a rational basis review, that is, whether the law is
rationally

related

to

some

legitimate

government

interest.

Manning v. Caldwell, 900 F.3d 139, 152 (4th Cir. 2018), rev’d en
banc, 930 F.3d 264 (4th Cir. 2019) (reversed on other grounds).
“Only those laws that implicate a fundamental constitutional right
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 or employ a suspect classification — typically some immutable
characteristic such as race or sex — receive heightened scrutiny.”
Id. (citing City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976)
(“Unless a classification trammels fundamental personal rights or
is

drawn

upon

inherently

suspect

distinctions

such

as

race,

religion, or alienage, our decisions presume the constitutionality
of

the

statutory

discriminations

and

require

only

that

the

classification challenged be rationally related to a legitimate
state interest.”)).

However, “[t]he Constitution’s guarantee of

equality must at the very least mean that a bare congressional
desire

to

harm

a

politically

unpopular

disparate treatment of that group.”

group

cannot

justify

Windsor, 570 U.S. at 770

(citation and internal quotation marks omitted).

A law motivated

by animus or by a desire to harm a politically unpopular group is
reviewed under “a more searching form of rational basis review.”
Lawrence

v.

Texas,

539

U.S.

558,

580

(2003)

(O’Connor,

J.,

concurring).
Plaintiffs do not suggest they are members of a protected
class but instead argue that the Property Protection Act was
enacted out of animus toward groups like theirs.

But they have

failed to show that the Act was passed with animus toward them.
Highlighting statements made by the Act’s sponsors sheds light on
some of the justifications for the Act, but those same sponsors
professed other justifications for the Act wholly unrelated to
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 Plaintiffs.
face,

And as it relates to voiding a statute that, on its

creates

no

unconstitutional

classifications,

“[w]hat

motivates one legislator to make a speech about a statute is not
necessarily what motivates scores of others to enact it, and the
stakes are sufficiently high for [the court] to eschew guesswork.”
United States v. O’Brien, 391 U.S. 367, 383-84 (1968).

When

considering the legislative record before the court, animus and
discrimination are not apparent.

Furthermore, Defendants are

correct that the text of the law matters.

See Romer v. Evans, 517

U.S. 620, 632-33, 635 (1996) (emphasis added) (finding that the
text of an amendment to the Constitution of the State of Colorado
imposed “a broad and undifferentiated disability on a single named
group” and was motivated by animus).

Plaintiffs support their

argument with reference to Windsor, but unlike in Windsor where
the Defense of Marriage Act text, and its name, made it clear that
a subset of the population was being targeted, the Act before the
court creates no category or disfavored subset of the population.
In fact, the ratified bill was entitled “An Act to Protect Property
Owners from Damages Resulting from Individuals Acting in Excess of
the Scope of Permissible Access and Conduct Granted to Them.”
(Doc. 99-8.)

Just as the Act applies to Plaintiffs’ animal rights

efforts, subsection (b)(1) could apply equally to a corporate
executive seeking to steal documents from her employer to sell to
a competitor, or subsection (b)(5) to an actor who enters another’s
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 property and removes or destroys production equipment.

Compare

the Property Protection Act with the challenged statute in U. S.
Dept. of Agric. v. Moreno, 413 U.S. 528, 533-34 (1973), which
distinguished between households of related people and households
of unrelated people to prevent hippies from participating in food
stamp

programs.

classifications

The
which

statute
were

purposes of the Act.”

in

“clearly

Id. at 534.

Moreno

created

irrelevant

to

statutory
the

stated

In contrast, the Property

Protection Act applies equally to all people and all organizations
and is rationally related to a legitimate governmental interest.
Consequently, Plaintiffs have not shown that the alleged animus
motivated the passage of the Act.
As to the Equal Protection Clause challenge to subsections
(b)(1) and (b)(5) of the Act, therefore, Plaintiffs’ motion for
summary judgment will be denied and Defendants’ and Intervenor’s
motions for summary judgment will be granted.
D.

Subsection (c)

Plaintiffs challenge N.C. Gen. Stat. § 99A-2(c) as it relates
to the unconstitutional provisions addressed above.

Subsection

(c) creates joint liability for any person who “intentionally
directs,

assists,

compensates,

or

violate” the Property Protection Act.

induces

another

person

to

Plaintiffs’ main arguments

are that “direct[ing]” and “induc[ing]” directly involve speech
(Doc. 99 at 11), and that subsection (c) should be struck down in
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 connection with subsections (b)(1)-(3) and (5).

Each Plaintiff

adopts the above arguments, although there is a clear distinction
between Plaintiffs who wish to conduct undercover investigations,
and those who wish to publish the information collected through
those

investigations.

In

response,

Intervenors

argue

that

Plaintiffs “provide no authority for the proposition that the First
Amendment protects individuals who encourage others to violate
generally

applicable

information.”

privacy

and

trespass

laws

to

gather

(Doc. 116 at 16.)

“[T]he First Amendment poses no bar to the imposition of civil
(or criminal) liability for speech acts which the plaintiff (or
the prosecution) can establish were undertaken with specific, if
not criminal, intent.”

Rice v. Paladin Enters., Inc., 128 F.3d

233, 248 (4th Cir. 1997).

If a person is targeted under the Act

for intentionally inducing or directing another to violate a valid
provision of subsection (b), the First Amendment would not protect
them from liability. However, the court has found that subsections
(b)(2) and (b)(3) are facially unconstitutional and subsections
(b)(1) and (b)(5) are unconstitutional as-applied to Plaintiffs.
Where the underlying act cannot form the basis for civil liability,
then liability cannot be imposed for “direct[ing], assist[ing],
compensat[ing], or induc[ing]” someone to engage in that act.

See

Champion Pro Consulting Grp., LLC v. Impact Sports Football, LLC,
116

F.

Supp.

3d

644,

652,

664

(M.D.N.C.

2015), aff'd

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Case 1:16-cv-00025-TDS-JEP Document 138 Filed 06/12/20 Page 69 of 73

sub

 nom. Champion Pro Consulting Grp., Inc. v. Impact Sports Football,
LLC, 845 F.3d 104 (4th Cir. 2016) (finding no liability where
defendants allegedly induced another to engage in activity that
was, itself, lawful).

See also 54 Causes of Action 2d 603 Cause

of Action for Civil Conspiracy, § 2 (2012).

Therefore, subsection

(c) cannot create joint liability for any Plaintiff who encourages
or assists either the prohibited acts in subsections (b)(2) and
(b)(3), or PETA and ALDF’s specific acts prohibited in (b)(1) and
(b)(5).
E.

Severability

No party has spoken to the severability of the Act, an issue
necessarily raised by the challenges.
only

part

of

a

law

is

When a court finds that

unconstitutional,

it

may

sever

the

unconstitutional provisions and leave the valid provisions of the
law in place.

Leavitt v. Jane L., 518 U.S. 137, 139-40 (1996).

This severability analysis is governed by state law.
40.

Id. at 139-

In North Carolina, the question of severability turns on

whether provisions of a statute are “so interrelated and mutually
dependent”

on

others

reference to another.”
(N.C. 1997).

that

they

“cannot

be

enforced

without

Fulton Corp. v. Faulkner, 481 S.E.2d 8, 9

The intent of the state legislature also serves a

guiding principle.

Pope v. Easley, 556 S.E.2d 265, 268 (N.C.

2001).
While the existence of a severability clause would be a “clear
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Case 1:16-cv-00025-TDS-JEP Document 138 Filed 06/12/20 Page 70 of 73

 statement of legislative intent,” Appeal of Springmoor, Inc., 498
S.E.2d 177, 184-85 (N.C. 1998), its presence is not required for
this court to find that the Act can be enforced absent its
unconstitutional provisions.

Subsections (b)(1) through (b)(5) of

the Property Protection Act give a complete account of what acts
“exceed[] a person’s authority to enter the nonpublic areas of
another’s premises.” N.C. Gen. Stat. § 99A-2(b). This disjunctive
list of discrete acts indicates that the legislature intended that
each separate provision be enforceable on its own, if implicated,
regardless of the neighboring provisions.

As such, subsections

(b)(1), (b)(2), (b)(3), and (b)(5) operate independently and can
be enforced without

reference to another.

The court finds,

consistent with North Carolina state law, that the challenged
provisions of the Property Protection Act were intended to be
severable and they are not mutually dependent on one another.

The

law is severable, and the facially unconstitutional provisions of
subsections (b)(2) and (b)(3) will be severed from the Act.15
III. CONCLUSION
For

the

reasons

set

forth

above,

the

court

finds

that

subsections (b)(1) and (b)(5) of the Property Protection Act are
unconstitutional as applied to Plaintiffs and subsections (b)(2)
and (b)(3) are unconstitutional both facially and as applied.

15

This conclusion is consistent with the fact that Plaintiffs did not
challenge other portions of the Act.

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 IT IS THEREFORE ORDERED that Plaintiffs’ motion for summary
judgment (Doc. 98) is GRANTED IN PART and DENIED IN PART and
Defendants’ and Intervenor’s motions for summary judgment (Docs.
107, 109) are GRANTED IN PART and DENIED IN PART as follows:
As to N.C. Gen. Stat. §§ 99A-2(b)(1) and (b)(5), Plaintiffs’
motion

for

challenge

summary
(Count

judgment

I)

is

based

GRANTED

on
and

their
the

First
law

is

Amendment
declared

unconstitutional as applied to them in their exercise of speech.
Defendants,

as

well

as

their

officers,

agents,

employees,

attorneys, and all other persons in active concert or participation
with them, are therefore permanently enjoined from attempting to
enforce subsections (b)(1) and (b)(5) against Plaintiffs in their
stated exercise of speech.
as to these subsections.

Plaintiffs’ motion is otherwise DENIED
Defendants’ and Intervenor’s motion for

summary judgment is GRANTED as to any facial challenge to these
subsections but is otherwise DENIED.
As to N.C. Gen. Stat. §§ 99A-2(b)(2) and (b)(3), Plaintiffs’
motion

for

challenge

summary
(Count

judgment

I)

is

based

GRANTED

on
and

their
the

First
law

is

Amendment
declared

unconstitutional both facially and as applied to them in their
exercise of speech.

Subsections (b)(2) and (b)(3) are therefore

struck down as unconstitutional.

Defendants, as well as their

officers, agents, employees, attorneys, and all other persons in
active

concert

or

participation

with

them,

are

permanently

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Case 1:16-cv-00025-TDS-JEP Document 138 Filed 06/12/20 Page 72 of 73

 enjoined from attempting to enforce subsections (b)(2) and (b)(3)
against Plaintiffs.

Defendants’ and Intervenor’s motions for

summary judgment on Plaintiffs’ facial challenge are DENIED.

The

parties’ remaining challenges are MOOT.
A judgment in conformance with this Memorandum Opinion and
Order will be issued.
/s/
Thomas D. Schroeder
United States District Judge
June 12, 2020

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