Last year, North Carolina made it nearly impossible for citizens to legally gather evidence on and report instances of wrongdoing — animals being mistreated by farm workers, for instance, or pollution being dumped into a stream. Now, a group of organizations is suing over the law, saying it tramples on North Carolinians’ constitutional rights.
In the lawsuit, filed this week against North Carolina’s attorney general, the groups allege that North Carolina’s House Bill 405 “attacks the core values embodied by the federal and state constitutional protections of speech and the press” and “should be declared unconstitutional under the First and Fourteenth Amendments of the United States Constitution.” The law in question allows business owners to sue people who take photos, video, or any other data from their property without their consent. That in and of itself presents constitutional questions, but it’s the law’s breadth that’s so concerning, said lead council for the case David Muraskin.
“This is a law designed to gag North Carolinian citizens,” Muraskin, a food safety and health attorney at Public Justice, said. “If you have a parent in a nursing home or a child in daycare, you should be concerned about this law.”
The law states that any actions that “interfere with the ownership or possession of real property” can be met with legal action. That statement is extrordinarily broad, Muraskin said, and could cover any number of actions, including going onto a property to take photos of wrongdoing or taking photos from outside of the property.
“No one could possibly understand” that section as it’s worded, Muraskin said. The way the law was drafted, Muraskin said, gives it the “broadest potential breadth.”
One of the ways we find out about pollution is people going in and investigating, or workers themselves going in and taking samples
North Carolina’s governor, Pat McCrory (R), agreed with some of these claims back in May of last year. That was when he vetoed the bill, saying that he was “concerned that subjecting these employees to potential civil penalties will create an environment that discourages them from reporting illegal activities.” But the North Carolina legislature, intent on getting the bill through for the sake of tougher controls on property protection, overrode his veto.
The law went into effect January 1, and though its impacts are broad — affecting data collection at “nursing homes, hospitals, group homes, medical practices, charter and private schools, day care centers and so forth,” according to AARP — it has specific implications for North Carolina’s environment. North Carolina raises a lot of hogs; it’s one of the top hog-producing states in the nation. Those hogs produce a lot of waste, and that waste can end up leaking from lagoons, where it’s sometimes stored, into local streams. But the law could make an employee of the farm wary of reporting a leak to officials, or could stop a passerby from taking a picture of the leak in the hopes of bringing it to the state’s attention.
“If there was a spill of swine waste due to a lagoon failure, or an equipment malfunction on a hog facility, this would really make an employee second-guess whether they call environment or public health officials to come respond to the problem,” Gray Jernigan, staff attorney and communications coordinator with Waterkeeper Alliance, told ThinkProgress in June.
Muraskin agreed.
“One of the ways we find out about pollution is people going in and investigating, or workers themselves going in and taking samples,” he said. Under the law, an employee can’t take a water sample from a stream and submit that sample to authorities without fear of legal recourse, he said. “There’s an argument that that it conflicts with the Clean Water Act.”
North Carolina is one of seven states that have so-called “ag-gag” laws on the books — laws that criminalize, to varying extents, data collection from private property. Most of the laws are centered around the agriculture industry, and are aimed largely at keeping employees or outside groups from photographing or videotaping animal abuse at large farming operations. Animal rights groups rely on these investigations to bring instances of abuse to light, and the videos published can lead to charges against the abusers and even bring about policy changes. In 2008, for instance, an undercover video exposed the issue of “downer” cows, which can’t stand on their own but, at that time, were still being used for beef. That video led to the largest meat recall in U.S. history, and using downer cows for meat is now banned across the country.
But these laws have been challenged in other states, too. A Federal District Court judge struck down Idaho’s ag-gag law last year, saying it was unconstitutional. Muraskin hopes North Carolina will follow suit.
“We’re very hopeful that the North Carolina District Court will rule North Carolina’s law unconstitutional, and we hope that state legislatures across country will recognize that they … cannot trump the First Amendment.”