Please ensure Javascript is enabled for purposes of website accessibility
Home / Opinion Digests / PETA defeats NC ban on undercover investigations

PETA defeats NC ban on undercover investigations

Where a North Carolina statute burdened the newsgathering and publishing activities of People for the Ethical Treatment of Animals, or PETA, and the statute did not satisfy intermediate or strict scrutiny, North Carolina was enjoined from applying the statute to PETA’s newsgathering activities.


PETA wishes to conduct undercover animal-cruelty investigations and publicize what they uncover. However North Carolina’s Property Protection Act punishes “[a]ny 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.”

PETA believes the Act unconstitutionally curbs its protected investigative activities. Specifically, PETA takes issue with subsections (b)(1)-(3) and (5), which define “an act that exceeds a person’s authority to enter.” On cross-motions for summary judgment, the district court held all four provisions violate the First Amendment.


North Carolina first offers that undercover investigations in nonpublic areas, as a class, constitute unprotected speech. The Supreme Court has placed only a “few limited areas” of speech outside the First Amendment’s protections and has never suggested “a freedom to disregard these traditional limitations.” These “historic and traditional categories long familiar to the bar” include obscenity, defamation, fraud, incitement, and speech integral to criminal conduct. But no comparable tradition withholds protections from nonpublic speech.

North Carolina next insists the First Amendment does not confer a license to break the law. However the court must go through the exercise of determining whether the Act clears the First Amendment bar; it cannot presume it constitutional and then deny PETA relief because the First Amendment confers no special privileges.

As a variation on its second argument, North Carolina insists that the Act is a “generally applicable law[ ]” and such 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.” Laws that implicate a variety of conduct, it insists, need not pass First Amendment scrutiny even when applied to speech. Neither Cohen v. Cowles Media Co., 501 U.S. 663 (1991), nor the cases it cites bear out that conclusion.

North Carolina argues that subsections (b)(1) and (2) punish not speech but intent to be disloyal, speech merely providing one way to prove disloyalty—and the First Amendment does not bar such evidentiary use of speech. But here the publication of an unfavorable article is the act of disloyalty. The First Amendment cannot so easily be evaded.


The question is whether the speech PETA seeks to undertake is “speech” the First Amendment protects. This court has no doubt that it is. Both on their face and in their “practical operation,” all four challenged provisions burden newsgathering and publishing activities.

These general newsgathering considerations aside, subsections (b)(1), (2) and (5) on their face single out speech. They would permit a journalist to procure employment under false pretenses, copy employer documents and record backstage footage—so long as she keeps those findings to herself. Yet a journalist who conducts herself in the exact same manner but speaks out against the employer would face heavy penalties.

All four challenged subsections must accordingly clear strict scrutiny. And because North Carolina has conceded that the Act cannot satisfy this highest bar, this court might well end our inquiry here. But the challenged provisions fail even intermediate scrutiny, for two reasons. As a remedy, the court enjoins North Carolina from applying the Act to PETA’s newsgathering activities but severs and reserves all other applications for future case-by-case adjudication.

Affirmed in part and reversed in part.

Dissenting opinion

Rushing, J., dissenting:

The majority concludes that the First Amendment protects the right to surreptitiously record in an “employer’s nonpublic areas as part of newsgathering” and holds the Act unconstitutional “when applied to bar [the undercover] newsgathering activities PETA wishes to conduct” on private property. I must dissent because our precedent forecloses the conclusion that it offends the First Amendment to apply generally applicable tort law prohibiting trespass and breach of duty to PETA’s proposed conduct.

People for the Ethical Treatment of Animals Inc. v. North Carolina Farm Bureau Federation Inc., Case Nos. 20-1776, 20-1777, 20-1807, Feb. 23, 2023. 4th Cir. (Floyd), from MDNC at Greensboro (Schroeder). Nicholas Scott Brod for Appellants/Cross-Appellees. David Samuel Muraskin for Appellees/Cross-Appellants. VLW 023-2-061. 60 pp.