USCA4 Appeal: 20-1776 Doc: 83 Filed: 02/23/2023 Pg: 1 of 60

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-1776

PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC.; ANIMAL LEGAL DEFENSE FUND; CENTER FOR FOOD SAFETY; FOOD & WATER WATCH; FARM SANCTUARY; GOVERNMENT ACCOUNTABILITY PROJECT; AMERICAN SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS; FARM FORWARD,

Plaintiffs - Appellees,

v.

NORTH CAROLINA FARM BUREAU FEDERATION, INC.,

Intervenor/Defendant – Appellant,

and

ATTORNEY GENERAL JOSH STEIN, Attorney General of the State of North Carolina; KEVIN GUSKIEWICZ, in his official capacity as Chancellor of the University of North Carolina-Chapel Hill,

Defendants.

-----------------------------

LAW PROFESSORS; UNITED FARM WORKERS OF AMERICA; REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS AND 17 MEDIA ORGANIZATIONS

Amici Supporting Appellees. USCA4 Appeal: 20-1776 Doc: 83 Filed: 02/23/2023 Pg: 2 of 60

No. 20-1777

PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC.; ANIMAL LEGAL DEFENSE FUND; CENTER FOR FOOD SAFETY; FOOD & WATER WATCH; FARM SANCTUARY; GOVERNMENT ACCOUNTABILITY PROJECT; AMERICAN SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS; FARM FORWARD,

Plaintiffs - Appellees,

v.

ATTORNEY GENERAL JOSH STEIN, Attorney General of the State of North Carolina; KEVIN GUSKIEWICZ, in his official capacity as Chancellor of the University of North Carolina-Chapel Hill,

Defendants – Appellants,

and

NORTH CAROLINA FARM BUREAU FEDERATION, INC.

Intervenor/Defendant.

-----------------------------

LAW PROFESSORS; UNITED FARM WORKERS OF AMERICA; REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS AND 17 MEDIA ORGANIZATIONS

Amici Supporting Appellees.

No. 20-1807

PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC.; ANIMAL LEGAL DEFENSE FUND; CENTER FOR FOOD SAFETY; FOOD & WATER WATCH; FARM SANCTUARY; GOVERNMENT ACCOUNTABILITY

2 USCA4 Appeal: 20-1776 Doc: 83 Filed: 02/23/2023 Pg: 3 of 60

PROJECT; AMERICAN SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS; FARM FORWARD,

Plaintiffs - Appellants,

v.

ATTORNEY GENERAL JOSH STEIN, Attorney General of the State of North Carolina; KEVIN GUSKIEWICZ, in his official capacity as Chancellor of the University of North Carolina-Chapel Hill,

Defendants – Appellees,

and

NORTH CAROLINA FARM BUREAU FEDERATION, INC.

Intervenor/Defendant – Appellee.

-----------------------------

LAW PROFESSORS; UNITED FARM WORKERS OF AMERICA; REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS AND 17 MEDIA ORGANIZATIONS

Amici Supporting Appellants.

Appeals from the United States District Court for the Middle District of North Carolina, at Greensboro. Thomas D. Schroeder, Chief District Judge. (1:16-cv-00025-TDS-JEP)

Argued: October 27, 2021 Decided: February 23, 2023

Before DIAZ and RUSHING, Circuit Judges, and FLOYD, Senior Circuit Judge.

Affirmed in part and reversed in part by published opinion. Senior Judge Floyd wrote the opinion in which Judge Diaz joined. Judge Rushing wrote a separate dissenting opinion.

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ARGUED: Nicholas Scott Brod, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellants/Cross-Appellees. David Samuel Muraskin, PUBLIC JUSTICE, PC, Washington, D.C., for Appellees/Cross-Appellants. ON BRIEF: Joshua H. Stein, Attorney General, Ryan Y. Park, Solicitor General, Matthew Tulchin, Special Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellants/Cross-Appellees Josh Stein and Kevin Guskiewicz. Timothy S. Bishop, Brett E. Legner, Chicago, Illinois, John S. Hahn, MAYER BROWN LLP, Washington, D.C.; Phillip Jacob Parker, Jr., Secretary and General Counsel, NORTH CAROLINA FARM BUREAU FEDERATION, INC., Raleigh, North Carolina, for Appellant/Cross-Appellee North Carolina Farm Bureau Federation, Inc. Daniel K. Bryson, Jeremy Williams, WHITFIELD BRYSON, Raleigh, North Carolina, for Appellees/Cross-Appellants. Gabriel Walters, Washington, D.C., Matthew Strugar, PETA FOUNDATION, Los Angeles, California, for Appellee/Cross-Appellant People for the Ethical Treatment of Animals, Inc. Cristina Stella, Kelsey Eberly, ANIMAL LEGAL DEFENSE FUND, Cotati, California, for Appellee/Cross-Appellant Animal Legal Defense Fund. Clare R. Norins, First Amendment Clinic, UNIVERSITY OF GEORGIA SCHOOL OF LAW, Athens, Georgia, for Amici Law Professors. Mario Martinez, MARTÍNEZ AGUILASOCHO & LYNCH, APLC, Bakersfield, California; Chris Lim, LAW OFFICE OF R. CHRIS LIM, Los Angeles, California, for Amicus United Farm Workers of America. Bruce D. Brown, Katie Townsend, Lin Weeks, REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, Washington, D.C., for Amici The Reporters Committee for Freedom of the Press and 17 Media Organizations.

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FLOYD, Senior Circuit Judge:

Seeking to follow in the well-trodden footsteps of Upton Sinclair, People for the

Ethical Treatment of Animals (PETA) 1 wishes to conduct undercover animal-cruelty

investigations and publicize what they uncover. But it faces a formidable obstacle: North

Carolina’s Property Protection Act (the Act), passed to punish “[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.” N.C. Gen. Stat. § 99A-2(a). The Act goes

on to explain what actions “exceed” authority. Some provisions cover wide swaths of

activities, such as “substantially interfer[ing] with the ownership or possession of real

property.” Id. § 99A-2(b)(5). Others appear more narrowly focused, prohibiting capturing,

removing, or photographing employer data—but only when the employee uses the data “to

breach the person’s duty of loyalty to the employer.” Id. § 99A-2(b)(1)–(2). Even these

more specific provisions, however, potentially reach anything from stealing sensitive client

information to ferreting out trade secrets in hopes of starting a competing business.

The parties spill much ink debating the repercussions of all these potential

applications. PETA contends the Act is nothing more than a discriminatory speech

restriction dressed up in property-protection garb. It urges us to put aside any legitimate

protections the Act may offer and concentrate on what it believes the North Carolina

1 Plaintiffs-Appellees and Cross-Appellants, which we collectively term PETA, are: 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.

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General Assembly really meant to accomplish: end all undercover and whistleblowing

investigations. North Carolina 2 casts the Act as generally applicable. Any incidental

restrictions on speech, it counters, come only as unavoidable side effects of the Act’s strong

remedies against trespass and disloyalty.

The need to confront the Act’s potentially legitimate applications indeed makes our

task difficult, especially on the sparse, pre-enforcement record before us, which renders all

applications theoretical. But the First Amendment “give[s] the benefit of any doubt to

protecting rather than stifling speech.” Citizens United v. Fed. Election Comm’n,

(2010) (citation omitted). So, cautiously, we forge ahead to ensure those

protections endure for “more than just the individual on a soapbox and the lonely

pamphleteer.”

(Roberts, C.J., concurring). But we decide no more than we must.

We enjoin the Act insofar as it applies to bar protected newsgathering activities PETA

wishes to conduct. But we leave for another day all other applications of the Act.

I.

The facts of this pre-enforcement challenge are uncontested and relatively

straightforward. In 2015, the North Carolina General Assembly prohibited “intentionally

gain[ing] access to the nonpublic areas of another’s premises and engag[ing] in an act that

exceeds the person’s authority to enter.” N.C. Gen. Stat. § 99A-2(a). The legislature

2 Defendants-Appellants and Cross-Appellees (collectively, North Carolina) are: the North Carolina Attorney General, University of North Carolina-Chapel Hill, and Intervenor North Carolina Farm Bureau Federation, Inc.

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allegedly passed the Act to codify this Court’s decision in Food Lion, Inc. v. Cap.

Cities/ABC Inc.,

(4th Cir. 1999), which allowed an employer to sue a double-

agent employee for trespass and disloyalty. See J.A. 203–04, 282. The codification meant

to accomplish two things. For one, North Carolina no longer had an employee-disloyalty

cause of action: Although Food Lion predicted, under Erie, that the State would allow

such a cause of action,

, 515–16, the North Carolina Supreme Court soon

held otherwise, Dalton v. Camp,

(2001). For another, Food Lion

rejected all but nominal damages, reasoning that any damages flowing from the publication

of the undercover investigation would violate the First Amendment.

.

Thus, the Act’s “[e]xemplary damages” provision: It offers $5,000 per each day of

violation as well as attorney’s fees in addition to any traditional compensatory damages

“otherwise allowed.” N.C. Gen. Stat. § 99A-2(c).

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” to encompass:

(1) An employee . . . enter[ing] 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 captur[ing] or remov[ing] the employer’s data, paper, records, or any other documents and us[ing] the information to breach the person’s duty of loyalty to the employer. (2) An employee . . . enter[ing] 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 record[ing] images or sound occurring within an employer’s premises and us[ing] the information to breach the person’s duty of loyalty to the employer.

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(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. ... (5) [Committing a]n act that substantially interferes with the ownership or possession of real property.

Id. § 99A-2(b)(1)–(3), (5). PETA challenges these provisions as applied and on their face.

On cross-motions for summary judgment, the district court held all four provisions

violate the First Amendment. As a threshold matter, the district court ruled the Act directly

implicates speech. Subsections (b)(1)–(3) restrict recordings, the court explained, which

per se constitute speech. People for the Ethical Treatment of Animals, Inc. v. Stein,

, 569–71 (M.D.N.C. 2020). And (b)(5), though it does not “target” speech,

“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.”

.

Next, in deciding what level of scrutiny to apply, the court observed that (b)(1) and

(2) discriminate against a particular viewpoint as they prohibit only recordings “use[d]”

contrary to an employer’s interests.

. And because North Carolina never

contended the Act can pass strict scrutiny, the court easily found (b)(1) and (2)

unconstitutional.

at 575–76. Conversely, the court applied only intermediate scrutiny

to (b)(3) and (5) because whatever speech they restrict, they do so without reference to

content.

at 576–79. Still, the court held those subsections violate even intermediate

scrutiny because the legislature did not tailor them to advance any substantial interest and

did not “show” with record evidence that it “seriously undertook to address the problem

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with less intrusive tools.”

(citation omitted).

As a final step, the court considered whether to enjoin the challenged provisions as

applied to PETA or in all their applications. It concluded (b)(2) and (3) fail on their face

because they hinge on recordings, meaning they always implicate speech.

. But

it enjoined subsections (b)(1) and (5) only as applied, because it could not “ignore the[ir]

possible myriad legitimate applications.”

at 570–71.

The parties now cross-appeal. PETA asks us to facially invalidate all four

challenged provisions; North Carolina insists the entire Act passes constitutional muster.

We review cross-motions for summary judgment with fresh eyes. Bostic v. Schaefer,

(4th Cir. 2014).

II.

PETA seeks to conduct undercover investigations. It wishes to speak to employees,

record documents found in nonpublic (but not necessarily private) areas, and carry out

surveillance. The Act prohibits all of these. Still, North Carolina insists the Act does not

implicate the First Amendment at all. It forwards four arguments, but none persuades.

A.

North Carolina first offers that undercover investigations in nonpublic areas, as a

class, constitute unprotected speech. That is a dangerous proposition that would wipe the

Constitution’s most treasured protections from large tranches of our daily lives.

Fortunately, it has no basis in law. “From 1791 to the present,” the Supreme Court has

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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.” R.A.V. v. St.

Paul,

, 382–83 (1992). These “historic and traditional categories long familiar

to the bar” include obscenity, defamation, fraud, incitement, and speech integral to criminal

conduct. United States v. Stevens,

(2010) (citations omitted). But no

comparable tradition withholds protections from nonpublic speech. Even more

fundamentally, the Court excluded those categories “because of their constitutionally

proscribable content,” R.A.V.,

; it has never exempted speech because of

its location. See New York v. Ferber,

(1982) (“It is the content of an

utterance that determines whether it is a protected epithet or an unprotected fighting

comment.” (internal quotation marks, brackets, and citation omitted)). That history must

control, for it ensures that the First Amendment’s shield falls away only from those narrow

categories of speech for which the Constitution never intended protection, not from those

forms of speech that the legislative majority just prefers not to protect.

North Carolina holds out Lloyd Corp., Ltd. v. Tanner, where the Court noted that it

“has never held that a trespasser or an uninvited guest may exercise general rights of free

speech on property privately owned.”

(1972). But Lloyd concerned a

mall owner’s right to exclude persons distributing handbills, and the analysis focused solely

on whether the mall has become a quasi-public space requiring the owner to “dedicat[e his]

private property to public use.”

. Nothing in that case permitted the government

to proscribe speech in nonpublic areas. See Animal Legal Def. Fund v. Kelly,

,

1238 (10th Cir. 2021) (observing that this line of reasoning “confuses two related but

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distinct concepts: a landowner’s ability to exclude from her property someone who wishes

to speak, and the government’s ability to jail the person for that speech” (citation omitted)).

Quite the opposite, in at least one case, the Court has struck down an ordinance that

“prohibits canvassers and others from going in and upon private residential property for

the purpose of promoting any cause without first having obtained a permit.” Watchtower

Bible & Tract Soc’y of N.Y., Inc. v. Village of Stratton,

, 166–69 (2002)

(internal quotation marks omitted).

We find no cogent principle that would permit us to apply the First Amendment to

the government’s attempts to stifle speech on “private residential property” yet eschew it

when it comes to restrictions on “nonpublic” employer premises. See Aptive Env’t, LLC v.

Town of Castle Rock,

(10th Cir. 2020) (rejecting an argument, based in

Lloyd, that a curfew on commercial door-to-door solicitation “does not implicate the First

Amendment”); S.H.A.R.K. v. Metro Parks Serving Summit Cnty.,

, 561–62

(6th Cir. 2007) (scrutinizing whether the government’s closure of a public park during

deer-culling operations, which prohibited animal activists from filming those operations,

conforms to the First Amendment). So while we agree that an employer could freely

choose to deny entry to journalists who seek to secretly record its inner workings, it does

not follow that a State can create “new categories of unprotected speech” to punish those

journalists. See Brown v. Entm’t Merchants Ass’n,

, 791–92 (2011). The First

Amendment limits the government; the government does not limit the First Amendment.

Even granting that whole categories of speech can go unprotected, the challenged

subsections would nonetheless implicate the First Amendment because they discriminate

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based on speaker and viewpoint. See infra, Part III. Even within a First-Amendment-free

zone, “[t]he government may not regulate . . . based on hostility—or favoritism—towards

the underlying message expressed.” R.A.V.,

(striking down an ordinance

prohibiting bias-motivated fighting words even though fighting words as a category do not

have a claim on the First Amendment). That is why the government may only restrict

“access to a nonpublic forum” by way of regulating the subject matter; it may not ban

speakers “because officials oppose the[ir] view.” Bd. of Airport Comm’rs of L.A. v. Jews

for Jesus, Inc.,

(1987) (quoting Perry Educ. Ass’n. v. Perry Local

Educators’ Ass’n,

(1983)).

Circuit courts, including our own, have relied on this line of cases to invalidate

analogous statutes. Fusaro v. Cogan, for example, acknowledged “the general principle

that there is no First Amendment right to” government information but nonetheless

remanded to apply the First Amendment because the statute “restrict[ed] access to and use

of [a list of registered voters] based on the identity of the speaker requesting the List and

the content of the speaker’s message.”

, 252–53 (4th Cir. 2019); see also

Chaker v. Crogan,

(9th Cir. 2005); Holloman ex rel. Holloman

v. Harland,

(11th Cir. 2004). Just so here. Assuming North Carolina

can punish all unauthorized recording or capture of documents, it cannot punish only

unauthorized recording or capture of documents done with the intent to breach the duty of

loyalty or cause damage to the facility. See Kelly, 9 F.4th at 1233 (reaching the same

conclusion as to the Kansas Farm Animal and Field Crop and Research Facilities Protection

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Act, which criminalized documenting animal abuse when undercover investigators acted

“with intent to damage the enterprise”).

B.

As its second line of defense, North Carolina insists the First Amendment does not

confer a license to break the law. E.g., Zemel v. Rusk,

, 16–17 (1965) (the right

“to publish does not carry with it” the right to break Congress’s travel restrictions to Cuba).

And because the Act merely codifies Food Lion’s protections against a “particular type of

employment-related trespass,” PETA should not be allowed to wield the First Amendment

to escape damages under the Act. Opening Br. 3.

Quite obviously, a journalist cannot invoke the First Amendment to shield herself

from charges of illegal wiretaps, breaking and entering, or document theft. Just as

obviously, however, a journalist cannot be charged under a law that prohibits criticism of

all government activities or a law that punishes all protests on a city’s streets. These

intuitive outcomes hold true because the first set of laws comports with First Amendment

strictures, not because the First Amendment plays no role at all. A law prohibiting breaking

and entering, for example, may well restrict the right to gather news, but protecting the

sanctity of a home presents a compelling government interest that overrides a journalist’s

(and society’s) right to a story.

All of that is to say, we must go through the exercise of determining whether the

Act clears the First Amendment bar; we cannot presume it constitutional and then deny

PETA relief because the First Amendment confers no special privileges. See Virginia v.

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Hicks,

(2003) (recognizing that a State can restrict a person from taking

part in a political demonstration in a public park if that person has previously been banned

from the park for vandalism “pursuant to a lawful regulation” (emphasis added)). For the

reasons spelled out below, we conclude the four provisions of the Act cannot survive this

scrutiny. But we pause now to observe that North Carolina places more weight on Food

Lion than it can bear.

Food Lion held that certain actions undercover investigators commit, like entering

into areas “not open to the public and secretly videotap[ing],” could amount to “an act that

was directly adverse to the interests of their second employer,” “thereby” constituting

trespass.

. Critical to the Court’s conclusion was its Erie guess that North

Carolina would extend the traditional duty of loyalty to food-counter clerks, for it supplied

the chain link between taping and trespass.

. But Food Lion guessed wrong.

Shortly after the decision came out, the North Carolina Supreme Court held the State

recognizes no such “broad” cause of action for disloyalty. See Dalton,

.

The Act, then, does not codify any tried-and-true common law principles, only the

legislature’s novel conceptions about disloyal undercover investigation. Those we must

measure firsthand against the First Amendment to ensure disloyalty does not become a

proxy for discriminating against employees voicing criticism of their employer. See W.

Watersheds Project v. Michael,

(10th Cir. 2017) (suggesting Zemel

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would have come out differently had the government “implement[ed] a law banning travel

to Cuba for the purpose of writing about or filming what they observe.”). 3

C.

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.” Opening Br. 26 (quoting Cohen v. Cowles Media Co.,

(1991)). That is true, as far as that goes. The media must, for example, obey antitrust

laws. Cowles,

(citing Associated Press v. United States,

3 Long ago, speaking about the related right to peaceable assembly, the Supreme Court warned against precisely this kind of confusion: “If the persons assembling have committed crimes . . . , they may be prosecuted for their . . . violation of valid laws. But it is a different matter when the State, instead of prosecuting them for such offenses, seizes upon mere participation in a peaceable assembly and a lawful public discussion as the basis for a criminal charge.” De Jonge v. Oregon,

(1937). So it is here. If PETA’s actions truly violate some lawful prohibition (like trespass), PETA may be charged for that violation. What North Carolina may not do, however, is craft a law targeting PETA’s protected right to speak. That said, Food Lion clarified that merely entering an employer’s nonpublic area after being hired under false pretenses does not add up to trespass because it does not invade “any of the specific interests relating to peaceable possession of land the tort of trespass seeks to protect.”

(quoting Desnick v. Am. Broad. Companies, Inc.,

, 1352 (7th Cir. 1995) (brackets omitted)). Under existing law, then, PETA can lawfully occupy nonpublic areas. And mere recording “what there is the right for the eye to see or the ear to hear” “falls squarely within the First Amendment right of access to information.” Fields v. City of Phila.,

(3d Cir. 2017); accord Kelly, 9 F.4th at 1233–34 (holding a similar statute unconstitutional because “the Act focuse[d] not on the alleged legally cognizable harm from trespass, but on the subsequent harm from the intent to harm the facility once on property”).

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(1945)). It must pay taxes.

(citing Murdock v. Pennsylvania,

(1943)).

It must answer subpoenas.

(citing Branzburg v. Hayes,

(1972)). But

those cases hold only that neutral laws apply to the press as well as to the general public.

North Carolina intends “generally applicable” in a different sense: Laws that

implicate a variety of conduct, it insists, need not pass First Amendment scrutiny even

when applied to speech. Neither Cowles nor the cases it cites bear out that conclusion.

While Associated Press, for example, held that newspapers cannot use their press status as

defense to antitrust law, Eastern Railroad Presidents Conf. v. Noerr Motor Freight Inc.,

(1961), and United Mine Workers v. Pennington,

(1965),

clarified that speakers—press or not—can raise as defense the fact that antitrust laws are

being applied to them because of their speech. Take also Cohen v. California, which

involved a generally applicable regulation barring breaches of the peace.

(1971). When Cohen was convicted for wearing a jacket bearing an epithet, the Court

applied First Amendment scrutiny, reasoning that “the generally applicable law was

directed at Cohen because of what his speech communicated.” Holder v. Humanitarian L.

Project,

, 28 (2010) (discussing Cohen). Same with Holder itself, where the

Court deemed irrelevant that the law “may be described as directed at conduct” where

plaintiffs triggered the statute by “communicating a message.” Id. Other examples

abound. Cantwell v. Connecticut,

, 308–09 (1940) (reversing a breach-of-the-

peace conviction under a generally applicable statute because the conviction was

predicated on “the effect of [the speaker’s] communication upon his hearers”); NAACP v.

Claiborne Hardware Co., 458 U.S 886, 909–10 (1982) (finding speech constituting

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tortious interference with business relations protected where interference flows from the

persuasive effect of speech); Hustler Mag., Inc. v. Falwell,

(1988)

(reasoning that tort of intentional infliction of emotional distress cannot be used to impose

liability for publishing cruel and vulgar satire); Billups v. City of Charleston,

(4th Cir. 2020) (“[A] law aimed at regulating businesses can be subject to First

Amendment scrutiny even though it does not directly regulate speech.”); Kelly, 9 F.4th at

1228 (“When a criminal prohibition includes multiple elements, some of which are

unquestionably conduct (such as trespassing), the statute may still fall under the First

Amendment if other elements target speech.”); Eugene Volokh, Speech as Conduct,

Generally Applicable Laws, Illegal Courses of Conduct, “Situation-Altering Utterances,”

and the Uncharted Zones,

, 1278–93 (2005) (advancing this

proposition).

Not to worry, North Carolina contends. Food Lion read Cowles to mean that

generally applicable laws may escape the First Amendment, and that reading controls in

this Circuit. 4 That is not quite right, even assuming we could set Humanitarian Law

4 To be sure, North Carolina correctly observes that Cowles allowed a plaintiff to sue newspapers for disclosing his name on theory of promissory estoppel without First Amendment analysis. But the Court gave a specific reason: “Minnesota law simply requires those making promises to keep them. The parties themselves . . . determine[d] the scope of their legal obligations, and any restrictions which may be placed on the publication . . . are self-imposed.”

. So the Court balked at the free-speech argument because the newspapers waived their right to free speech, not because generally applicable laws by definition escape First Amendment scrutiny. Volokh, supra, at 1297; see also IMDb.com Inc. v. Becerra,

(9th Cir. 2020) (reading Cowles to espouse the “limited” principle that “[p]rivate parties may freely bargain with each other to restrict their own speech” but declining to extend that principle to “state-created restriction[s]” that 17 USCA4 Appeal: 20-1776 Doc: 83 Filed: 02/23/2023 Pg: 18 of 60

Project aside. Food Lion posited that Cowles involved only “the breach of promise and

not some form of expression” and itself concerned only the non-expressive act: undercover

employees working for two competing employers at once.

. Consistent

with that understanding, the Court allowed only nominal damages because Food Lion

failed to prove damages stemming from the disloyal act. It then rejected damages flowing

from any reporting as “an end-run around” Hustler’s prohibition that plaintiffs “may not

recover for [violation of generally applicable torts] by reason of publications.”

at 522–

23 (quoting Hustler,

). Food Lion thus properly recognized that a State may

not harness generally applicable laws to abridge speech without first ensuring the First

Amendment would allow it. Accord ACLU of Ill. v. Alvarez,

(7th Cir.

2012) (citing Food Lion’s interpretation of Hustler to hold that generally applicable laws

trigger strict scrutiny when their “effect on First Amendment interests is far from

incidental”).

“exist independently of, and prior to, any interaction between the speaker and another” (internal quotation marks and citation omitted)). And the same term it decided Cowles, the Court subjected Indiana’s generally applicable public-indecency statute to First Amendment scrutiny when applied to establishments that offer nude dancing, without any reference to Cowles. Barnes v. Glen Theatre, Inc.,

(1991). Several years later, the Third Circuit criticized the court below for reading Cowles “too broadly” and could find no jurisprudence to “support the surprising proposition that a statute that governs both pure speech and conduct merits less First Amendment scrutiny than one that regulates speech alone.” Bartnicki v. Vopper,

(3d Cir. 1999). The Supreme Court affirmed, yet again without mentioning Cowles. Bartnicki v. Vopper,

(2001). The last time the Court cited Cowles was in 1994, offering only that “a generally applicable law may or may not be subject to heightened scrutiny under the First Amendment.” Turner Broad. Sys., Inc. v. F.C.C.,

(1994). Cowles thus cannot support North Carolina’s unqualified rule that generally applicable laws never trigger the First Amendment.

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That makes good sense. Laws cast in broad terms can restrict speech as much as

laws that single it out. Consider three statutes that regulate public-park behavior. One

obligates speakers to obtain a license before using a megaphone. The second prohibits

noise above a certain decibel level without a license. The third requires a license to (1)

walk a dog, (2) play group sports, or (3) speak with a megaphone. The first statute readily

calls for First Amendment review (and likely fails it). See Saia v. People of State of New

York,

, 559–60 (1948) (striking down a statute that forbade the use of sound

amplification devices without prior authorization from the chief of police). But the other

two curtail the same speech right and to the same degree and should therefore similarly

occasion First Amendment scrutiny.

Applying the First Amendment, of course, does not necessarily translate into

invalidating a statute; it only triggers the balancing inquiry. And the way a legislature

writes a statute matters a great deal to its ultimate constitutionality. The second, broadest

hypothetical, for example, will most easily pass scrutiny because it is most likely to fit the

legitimate, non-discriminatory government interests urged as its justification. See Elena

Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First

Amendment Doctrine,

, 496 (1996) (“The breadth of these laws

makes them poor vehicles for censorial designs; they are instruments too blunt for

effecting, or even reflecting, ideological disapproval.”). The statute’s general applicability

also “goes to the breadth of the remedy”—whether the statute violates the First Amendment

on its face or whether certain offending provisions can be severed. Citizens United,

; see infra, Part IV.A. But legislatures do not write themselves out of the First

19 USCA4 Appeal: 20-1776 Doc: 83 Filed: 02/23/2023 Pg: 20 of 60

Amendment analysis simply by extending a statute’s reach. General or not, the First

Amendment applies when the Act is used to silence protected speech.

D.

North Carolina offers one last defense, specific to subsections (b)(1) and (2). These

subsections, it protests, 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. That is certainly true of some statutes. When deciding whether to hold an

employee liable for intentionally recruiting colleagues into a competing enterprise, a court

can constitutionally consider the employee’s conversations as proof of intent. But this is

not that case. Here, the publication of an unfavorable article is the act of disloyalty. A

more faithful analogy would be cancelling public debates on contentious topics under a

statute that prohibits intentional breaches of the peace on the theory that holding such

debates evidences intent to breach the peace. Such wordplay plainly cannot transmute an

unconstitutional statute into one of constitutional merit. See Hustler,

(denying publication damages to a target of a scathing political cartoon even though “intent

to cause injury is . . . the gravamen of the tort”); Kelly, 9 F.4th at 1242 (reasoning,

persuasively, that “a law prohibiting making any utterance with the intention to criticize an

agriculture facility” functions “identical[ly]” to a law that directly prohibits criticizing the

facility). The First Amendment cannot so easily be evaded.

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E.

Because we find no categorical reason to sidestep the First Amendment, we are left

with the question whether the speech PETA seeks to undertake is “speech” the First

Amendment protects. We have no doubt that it is. Both on their face and in their “practical

operation,” all four challenged provisions burden newsgathering and publishing activities.

Sorrell v. IMS Health Inc.,

(2011). Subsection (b)(1)’s prohibition on

using “captur[ed]” data in a disloyal manner prevents an undercover employee from

publishing a critical article based on any notes she takes of documents or policies laid out

in a breakroom. N.C. Gen. Stat. § 99A-2(b)(1). 5 Subsection (b)(2) forbids including a

photograph of the same documents in the article. N.C. Gen. Stat. § 99A-2(b)(2).

Subsection (b)(3) then punishes the undercover employee for placing an unattended camera

on the factory floor while she works. Id. § 99A-2(b)(3). And the “catch-all” (b)(5),

Opening Br. 8, may reach even mere reporting of a conversation had with other

employees—to a newspaper, a union, a state agency—if the reporting leads the State to

shut down the facility. See id. § 99A-2(b)(5) (prohibiting acts “that substantially

interfere[ ] with the ownership or possession of real property”).

5 The Oxford English Dictionary defines “to capture” as, among others, to “represent, catch, or record (something elusive, as a quality) in speech [or] writing.” Oxford English Dictionary Online, https://www.oed.com/view/Entry/27660?rskey=ls7NSW&result= 2#eid. Subsection (b)(1) thus reaches beyond mere “record[ing of] images or sound” that (b)(2) already proscribes. See also Reiter v. Sonotone Corp.,

(1979) (directing courts to give effect to each statutory provision).

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If the First Amendment has any force, such “creation” of information demands as

much protection as its “dissemination.” Sorrell,

. “Facts, after all, are the

beginning point for much of the speech that is most essential to advance human knowledge

and to conduct human affairs.”

And the right to publish a recording would be “largely

ineffective, if the antecedent act of making the recording is wholly unprotected.” ACLU of

Ill. v. Alvarez,

(7th Cir. 2012). No surprise, then, that scores of Supreme

Court and circuit cases apply the First Amendment to safeguard the right to gather

information as a predicate to speech. E.g., Sorrell,

(equating “content- and

speaker-based restrictions on the availability” of prescriber-identifying information “with

a law prohibiting trade magazines from purchasing or using ink” (citing Minneapolis Star

& Trib. Co. v. Minn. Comm’r of Revenue,

(1983))); Citizens United,

(invalidating ban on political-speech spending because the government may not

“repress speech by silencing certain voices at any of the various points in the speech

process”); McConnell v. FEC,

(2003) (Scalia, J., concurring in part and

dissenting in part) (“The right to speak would be largely ineffective if it did not include the

right to engage in financial transactions that are the incidents of its exercise.”); Fields v.

City of Phila.,

(3d Cir. 2017) (“[T]he Amendment must . . . protect the

act of creating” photos and videos where those photos and videos are themselves

protected); Turner v. Lieutenant Driver,

(5th Cir. 2017) (“[T]he First

Amendment protects the act of making film, as there is no fixed First Amendment line

between the act of creating speech and the speech itself.” (quotation omitted)); Buehrle v.

City of Key West,

(11th Cir. 2015) (First Amendment harm results from

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“proceed[ing] upstream and dam[ming] the source” of speech); Desnick v. Am. Broad.

Cos., Inc.,

, 1355 (7th Cir. 1995) (“the production of the broadcast” warrants

the same First Amendment attentions as “the content of the broadcast”).

The right to gather information plays a distinctly acute role in journalism. First-

hand accounts, buttressed by video evidence, enhance accuracy and credibility in reporting

and increase transparency and reader trust, allowing the press “to tell more complete and

powerful stories.” See Br. of Amici Curiae the Reporters Committee for Freedom of the

Press in Support of Pls.-Appellees 17–18 (citing The Hierarchy of Information and

Concentric Circles of Sources, American Press Institute (last visited Feb. 4, 2021),

https://perma/cc/NX8V-Q2UT; Deron Lee, “Ag-gag” Reflex, Columbia Journalism

Review (Aug. 6, 2013), https://perma.cc/Z5D5-GSJZ). It is this “depth of . . . exploration,”

Citizens United,

, that brings reporting to life, demanding our attention and

allowing us to appreciate the full scope of the societal issues related.

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. See N.C.

Gen. Stat. § 99A-2(b)(1), (2) (conditioning liability on employee’s “us[ing] the information

to breach the person’s duty of loyalty”); id. at § 99A-2(b)(5) (punishing speech if it

“substantially interferes with” possession of real property). This regulatory mechanism,

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based on speech, triggers the First Amendment, and we proceed to inquire whether it can

pass the appropriate level of scrutiny.

III.

Apparent from our hypothetical immediately above, subsections (b)(1), (2), and (5)

do not merely target speech, but speech critical of the employer—a laudatory publication,

after all, is unlikely to breach the duty of loyalty or interfere with possession of real

property. Whether this discrimination occurs “by design or inadvertence,” these provisions

merit strict scrutiny. Citizens United,

. North Carolina does not agree.

Subsections (b)(1), (2), and (5), it argues, regulate speech function, not content. But that

fosters the same problem—and the same First Amendment violation. As Reed v. Town of

Gilbert counseled, to give full force to the First Amendment, strict scrutiny must apply as

much to “obvious” as to “more subtle” content distinctions, “defining regulated speech by

its function or purpose.”

(2015). North Carolina responds that Reed is

but one Supreme Court decision standing for this proposition. But recently, the Court

reaffirmed Reed’s “straightforward” conclusion that “a regulation of speech cannot escape

classification as facially content based” (or, presumably, viewpoint-discriminatory)

“simply by swapping an obvious subject-matter distinction for a ‘function or purpose’

proxy that achieves the same result.” City of Austin v. Reagan Nat’l Advert. of Austin,

LLC,

(2022) (favorably citing Reed,

, 163–64). 6

6 North Carolina argues Austin supports its argument, because the Court there declined to hold that a “classification that considers function or purpose is always content based.” 142 24 USCA4 Appeal: 20-1776 Doc: 83 Filed: 02/23/2023 Pg: 25 of 60

And besides, the Court has long been wary of legislative attempts to evade First

Amendment review through formalistic “labels.” NAACP v. Button,

(1963) (striking down a Virginia law regulating attorney “solicitation” because, “[i]n the

context of NAACP objectives, litigation is not a technique of resolving private differences;

it is a means for achieving the lawful objectives of equality of treatment”); accord Kelly, 9

F.4th at 1233 (applying strict scrutiny to a statute “viewpoint discriminatory in

operation”). 7

Subsection (b)(3) appears different, at first blush. It punishes the mere “placing” of

an unattended camera without any reference to the content recorded. N.C. Gen. Stat.

§ 99A-2(b)(3). Recall, however, that (b)(3) prohibits filming “on the employer’s

premises.” Id. We take that language to intentionally extend to employee activity only,

following the “sound rule of construction that where a word has a clear and definite

meaning when used in one part of a . . . document, but has not when used in another, the

presumption is that the word is intended to have the same meaning in the latter as in the

former part.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 170

S. Ct. at 1474. But no one argues for such a capacious principle here. PETA simply points out that these subsections function to eradicate speech critical of the employer—just as the ordinance in Reed functioned to single out certain signs for favorable treatment. And that Reed—and now Austin—allow us to look beyond “overt” descriptions to decipher that function. Id. 7 North Carolina further objects that subsection (b)(5) does not reference speech on its face, much less a particular viewpoint. That merely reprises its generally-applicable-laws argument. That “all sorts of non-speech acts can trigger” (b)(5), Opening Br. 64, does nothing for the instances where speech actually triggers the provision. And in those instances, (b)(5) applies only to speech that “substantially interferes with the ownership or possession” of the employer’s property. N.C. Gen. Stat. § 99A-2(b)(5).

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(2012) (citation omitted). Subsections (b)(1) and (2)—which directly precede (b)(3)—

concern “employee” actions on “employer” property. N.C. Gen. Stat. § 99A-2(b)(1)–(2).

As does subsection (e), which addresses exemptions for certain whistleblower

“employees.” Id. § 99A-2(e). Other subsections, by contrast, apply broadly to “[a]ny

person” operating on “another’s premises.” Id. § 99A-2(a), see also id. § 99A-2(c).

Drawing on those distinctions, we might reasonably conclude that subsection (b)(3)

applies to an undercover employee working on “employer’s premises” but not to an outside

journalist invited to profile a company (who would more likely write a positive review).

Nor a representative from a state enforcement agency (who would be much less likely to

leak anything to the press). And such “restrictions distinguishing among different

speakers, allowing speech by some but not others” are as repugnant to the First Amendment

as are restrictions distinguishing among viewpoints. Citizens United,

. “As

instruments to censor, these categories are interrelated: Speech restrictions based on the

identity of the speaker are all too often simply a means to control content.” Id.; see also

First Nat’l Bank of Bos. v. Bellotti,

, 784–85 (1978) (“the legislature is

constitutionally disqualified from dictating” which speakers “may address a public issue”).

Read this way, all four challenged subsections must accordingly clear strict scrutiny. And

because North Carolina has conceded—here and, previously, before the district court—

that the Act cannot satisfy this highest bar, we might well end our inquiry here.

But the challenged provisions fail even intermediate scrutiny, for two reasons. First

off, all four challenged provisions chill an alarming amount of speech without any “actual

evidence” in the legislative record that lesser restrictions will not do—a nonnegotiable

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requirement in this Circuit. Reynolds v. Middleton,

(4th Cir. 2015).

Even setting the evidentiary obligations aside, however, subsections (b)(1)–(3) are not

equipped to further any permissible interests in safeguarding employer privacy or property.

We take these considerations in turn.

A.

As discussed, the Act outlaws all recordings, N.C. Gen. Stat. § 99A-2(b)(2), (3), and

restricts capturing the contents of any document, even by hand, id. § 99A-2(b)(1).

Together, those provisions halt all meaningful undercover investigations. And (b)(5),

when coupled with the Act’s joint-liability provision, reaches further still, punishing bona

fide employees turned whistleblowers, the unions, the press, and anyone in between, if

their actions eventually “interfere[ ] with the ownership or possession” of the employer’s

property. Id. § 99A-2(b)(5); see also id. § 99A-2(c) (extending liability to “[a]ny person

who intentionally directs, assists, compensates, or induces another person to violate” the

Act). Here consider a watchdog’s publication of PETA’s investigation, a worker who spots

Occupational Safety and Health Administration (OSHA) violations and reports them to the

federal government, or a union that exposes child labor violations to the State. If any of

those lead to (even a temporary) shut down of the employer’s operations, (b)(5) would

allow the employer to collect $5,000 per day from anyone involved. The scope of this

outright ban cannot be overstated.

North Carolina protests that other provisions in the Act curb liability. Subsection

(e), it claims, ensures the Act may not be “construed to diminish the protections provided

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to employees under Article 21 of Chapter 95 or Article 14 of Chapter 126 of the General

Statutes,” protecting whistleblowers. See N.C. Gen. Stat. § 99A-2(e). But these turn out

to be narrow protections indeed. Article 21 protects only employees engaged in formal

whistleblowing of retaliatory employment discrimination to state agencies,

to 95-242, and Article 14 reaches solely state employees who offer legislative

testimony on matters of public concern,

to 126-85. North

Carolina also offers that traditional principles of agency would allow employees to reveal

“that the principal is committing or is about to commit a crime” without breaching the duty

of loyalty—and thus without breaching subsections (b)(1) or (2). Resp.-Reply Br. 58

(quoting Restatement (Third) of Agency § 8.05(c)). And that, in any event, an employee

breaches the duty of loyalty only where, like in Food Lion, she uses information with the

“intent to harm one employer to benefit another” rather than all speech critical of the

employer. Opening Br. 38, 43, 45. The Act’s text, however, guarantees none of that

restraint. If anything, the Act’s (scant) whistleblower protections imply the Act otherwise

covers bona fide employees who do not report to any other employers.

Before a State may pass such expansive speech restrictions, this Circuit’s precedent

requires it “to produce evidence demonstrating that it seriously undertook to utilize”

existing laws or “attempted to use less intrusive tools readily available to it” to achieve the

proffered aims. Billups, 961 F.3d at 689–90 (emphasis added) (internal quotation marks

and citation omitted); see also Reynolds,

(“argument unsupported by th[at]

evidence will not suffice to carry the government’s burden”); McCullen v. Coakley,

, 496 (2014) (“Given the vital First Amendment interests at stake, it is not enough

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for [the government] simply to say that other approaches have not worked.”). North

Carolina concedes the State produced no such evidence but distinguishes Billups, Reynolds,

and McCullen, arguing they involved “unprecedented” laws whereas “[t]he Act merely

provides an enhanced damages remedy for conduct that the common law has long deemed

tortious.” Resp.-Reply Br. 46. That mistakes both the facts and the law. We have never

said the evidentiary rule applies only to novel speech regulations. And the Act is literally

unprecedented in common or statutory North Carolina law. We have already discussed

why the Act does not merely codify the “particular type of employment-related trespass”

sanctioned in Food Lion. See supra, Part II.B. Nor does it reflect the more traditional

trespass or privacy principles. Subsections (b)(1)–(3) likely punish only employees and

only when they exceed their authorization in a particular manner: by capturing documents,

recording images, or placing unattended cameras. As for disloyalty, the Act makes it at

most an element of (b)(1) and (2); it does not define acts that breach the duty or specify a

class of employees who owe it. North Carolina can point to no historical precedents that

conceptualize employee loyalty in that cookie-cutter way.

Because the legislature cannot meet its evidentiary burden, the Act cannot satisfy

intermediate scrutiny.

B.

But the problem with these subsections is not just that they enact novel restrictions

on newsgathering. It is that those restrictions do not fit any of the State’s professed interests

in passing the Act. Start with (b)(1) and (2). North Carolina offers they protect private

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property against trespass. As a rule, however, “trespassory interests” concern how the

information is obtained. Desnick, 44 F.3d at 1353. Yet liability under (b)(1) and (2) does

not attach until the information is used to breach the duty of loyalty. Subsections (b)(1)

and (2) thus, at best, punish only a subset of trespassory conduct. The same goes for

privacy: On their face, (b)(1) and (2) apply only to certain types of employees and certain

modes of deception. See N.C. Gen. Stat. § 99A-2(b)(1)–(2) (punishing only “employee[s]

who enter[ ] the nonpublic areas of an employer’s premises for a reason other than a bona

fide intent of seeking or holding employment”). But privacy interests are no less

compromised when a bona fide employee performing genuine employment activities

overhears and tapes a private conversation. In the same vein, (b)(1) and (2) punish certain

types of disloyal speech: disclosure of recordings. Yet a critical interview can be just as

disloyal. And just as damaging.

Similar concerns plague (b)(3), in that recording devices placed through breaking

and entering (rather than trickery) impair privacy and property just the same. Such “facial

underinclusiveness” “raises serious doubts about whether [the State] is, in fact, serving,

with this statute, the significant interests” invoked. The Fla. Star v. B.J.F.,

(1989).

As for (b)(5), the district court was right the subsection has many permissible

applications. It prohibits, for example, physical destruction of property that substantially

interferes with employer operations. But North Carolina concedes that (b)(5), like (b)(3),

also applies to employees installing hidden cameras. And to that extent, it must suffer the

same fate.

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On the other side of the token, the four subsections are also overinclusive. Perhaps

most tellingly, they do not distinguish between nonpublic and private spaces. Yet privacy

interests intimated in these spaces are different in kind. A journalist capturing documents

laid out in the breakroom, (b)(1), recording her own conversations with other employees,

(b)(2), or even propping an unattended camera on the factory floor, (b)(3) and (5),

implicates fundamentally different interests from one recording private calls in a manager’s

office. See Desnick, 44 F.3d at 1353 (undercover patients who surreptitiously taped and

then published their doctor’s visits did not infringe the doctor’s right to privacy because

they did not reveal “intimate personal facts” or “intru[de] into legitimately private

activities, such as phone conversations”).

The challenged subsections thus fail intermediate scrutiny both because the

legislature produced no record evidence justifying its expansive restrictions on

newsgathering speech and because their newsgathering prohibitions are not tailored to any

substantial government interest.

IV.

Having determined that the challenged provisions cannot satisfy First Amendment

scrutiny, we must select a proportionate remedy. PETA asks us to invalidate the four

provisions on their face; North Carolina objects, believing facial invalidation appropriate

only when “no set of circumstances exists under which the [statute] would be valid.”

United States v. Salerno,

(1987). PETA retorts that “the dicta in Salerno

does not accurately characterize the standard for deciding facial challenges.” Janklow v.

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Planned Parenthood, Sioux Falls Clinic,

, 1175 (1996) (Stevens, J.,

respecting the denial of certiorari). Instead, a long line of cases invalidates statutes by

simply applying the relevant constitutional test—here, strict or intermediate scrutiny. See

Resp. Br. 58–60 (collecting cases); Br. of Amici Curiae Law Professors in Support of Pls.-

Appellees 10–11. We agree with North Carolina, though not for the reasons it advances.

A.

On the narrow issue of Salerno, PETA has the better argument. In the words of the

Supreme Court, Salerno is not “a speech case,” Stevens,

, and “the Court

has allowed [facial] challenges to proceed under a diverse array of constitutional

provisions,” Los Angeles v. Patel,

(2015). E.g., Sorrell,

;

Packingham v. North Carolina,

(2017); Brown v. Ent. Merchants

Ass’n,

(2011); Citizens United, 558 U.S. at 365–66 (all applying the

relevant constitutional standard, not Salerno’s no-set-of-circumstances test). So has this

Circuit. See Billups,

; Fusaro, 930 F.3d at 263–64; Kolbe v. Hogan,

, 148 n.19 (4th Cir. 2017); Liverman v. City of Petersburg,

, 407–09

(4th Cir. 2016); Legend Night Club v. Miller,

, 299–300 (4th Cir. 2011). And

still others. See Bruni v. Pittsburgh,

(3d Cir. 2016); Doe v. City of

Albuquerque,

(10th Cir. 2012); Ezell v. City of Chic.,

,

698–99 (7th Cir. 2011); Rothe Dev. Corp. v. Dep’t of Def.,

, 1337–38 (Fed.

Cir. 2005). As it appears, if courts have ever “articulated a clear standard for facial

challenges, it is not the Salerno formulation, which has never been the decisive factor in

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any decision of th[e] Court, including Salerno itself.” City of Chic. v. Morales,

, 55 n.22 (1999) (plurality op.).

But the Salerno debate largely reflects mistaken assumptions about what it means

for a federal court to “invalidate” a state statute. Because state courts and lower federal

courts stand in a coordinate, not a hierarchical, relationship, the binding effect of the federal

judgment extends no further than the parties to the lawsuit; against nonparties, civil and

criminal actions can go forward. E.g., Doran v. Salem Inn, Inc.,

(1975).

And state courts must ultimately decide what “invalidated” statutes mean. E.g., Gooding

v. Wilson,

(1972). To the extent that our decision is forward-looking at

all, then, that is because “the reasoning of a decision may suggest that there is no

permissible application of a particular statute.” Patel,

(Scalia, J.,

dissenting).

Traditional constitutional and institutional principles point in the same direction.

Article III teaches that we must always begin with the case and controversy before us, U.S.

Const. art. III, so as not to “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,” Citizens United,

(Stevens,

J., concurring in part and dissenting in part) (quoting Wash. State Grange v. Wash. State

Republican Party,

(2008)). So broader “[c]onstitutional judgments . . .

are justified only out of the necessity of adjudicating rights in particular cases between the

litigants brought before the Court.” Broadrick v. Oklahoma,

(1973); see

Connection Distrib. Co. v. Holder,

(6th Cir. 2009) (finding a facial

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challenge appropriate where “the constitutional problems cannot meaningfully be

severed”); Richard H. Fallon, Jr., As-Applied and Facial Challenges and Third-Party

Standing,

, 1324, 1328 (2000) (“There is no single distinctive

category of facial, as opposed to as-applied, litigation;” “determinations that statutes are

facially invalid properly occur only as logical outgrowths of rulings on whether statutes

may be applied to particular litigants on particular facts.”); Gillian E. Metzger, Facial

Challenges and Federalism,

, 876 (2005) (“The debate regarding

the availability of facial challenges” is “really a debate about statutory severability.”).

Distilled to practice, those principles mean that, in some cases, resolving the specific

question before the court ends the matter. United States v. Grace, for example, considered

the constitutionality of a statute prohibiting the display of any flag, banner, or device that

spotlights any party, organization, or movement on the Supreme Court grounds.

(1983). The statute covered the building, the plaza, the surrounding promenade, and

the sidewalks surrounding the Court. The challenged activity, however—distributing

leaflets and displaying signs—occurred only on the sidewalks. The Court correspondingly

“address[ed] only whether the [statute was] constitutional as applied to the public

sidewalks,” in the end holding the ban not “necessary for the maintenance of peace and

tranquility,” the main purpose behind the statute.

. But the Court saw no

reason to analyze whether such a ban may permissively further the statute’s aim when

applied to the Court’s plaza, steps, or the building itself. See

; see also Marsh v.

Alabama,

(1946) (striking down a state trespass law only “[i]nsofar as

the State has attempted to impose criminal punishment” on those distributing literature on

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the streets of a company town); Time, Inc. v. Hill,

(1967) (faulting

a state court for applying a privacy statute to sanction a publication absent a finding of the

magazine’s “knowledge of its falsity” but declining to invalidate the statute in toto where

the court otherwise “has been assiduous in construing the statute to avoid invasion of the

constitutional protections of speech and press”); Brockett v. Spokane Arcades, Inc.,

(1985) (invalidating a statute “only insofar as the word ‘lust’ is to be

understood as reaching protected materials”); Humanitarian Law Project, 561 U.S. at 8

(considering whether a statute prohibiting material support to terrorist groups violates the

First Amendment “as applied to the particular activities plaintiffs . . . wish to pursue” but

declining to “address the resolution of more difficult cases that may arise under the statute

in the future”). Put simply, when “it is not necessary to decide more, it is necessary not to

decide more.” Citizens United,

(Roberts, C.J., concurring) (citation

omitted).

B.

With these principles in mind, we decline to enjoin any potential applications of the

Act outside the newsgathering context. See Connection Distrib.,

(reminding that courts need not “sever an offending portion of the text from the rest of the

statute,” they may instead “enjoin the unconstitutional applications of the law while

preserving the other valid applications of the law” (citing Brockett, 472 U.S. at 504–05;

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Grace, 461 U.S. at 180–83)). We thus reverse the district court’s invalidation of

subsections (b)(2) and (3) in their entirety.

Our main point of disagreement centers around the court’s belief that all “recording

is protected speech.” People for the Ethical Treatment of Animals, 466 F. Supp. 3d at 571.

We do not think it wise to go that far where the case itself does not call for a categorical

pronouncement and where the briefing is, understandably, agnostic on the potential

implications of such an absolute decision. Should posting a hidden camera in a CEO’s

office—or her home—per se constitute protected expression? How about photographing

proprietary documents to tap into trade secrets, with no intent of creating a work of art?

Recording private telephone conversations? See Miller v. Brooks,

(N.C. Ct. App. 1996) (First Amendment “not implicate[d]” where defendants infiltrated a

plaintiff’s “bedroom, and placed a hidden video camera in his room which recorded

pictures of him undressing, showering, and going to bed”). For our purposes, it suffices to

hold only that recording in the employer’s nonpublic areas as part of newsgathering

constitutes protected speech. 8

Similarly circumscribed decisions by our sister circuits further convince us that a

narrow decision is most appropriate today. Fields, for example, held that recordings of

8 This approach is hardly unique. The Supreme Court has often rejected “categorical rule[s]” that a certain type of speech is always deserving of First Amendment protection. E.g., United States v. Alvarez,

(2012) (declining to hold broadly that all “false statements receive no First Amendment protection” and denying protection only to those claims that were “made to effect a fraud or secure moneys or other valuable considerations”).

36 USCA4 Appeal: 20-1776 Doc: 83 Filed: 02/23/2023 Pg: 37 of 60

police activity constitute protected conduct—but only because “[t]here is no practical

difference between allowing police to prevent people from taking recordings and actually

banning the possession or distribution of them.”

. That is, the Third Circuit

found recordings to be protected because the information recorded was the type of

information we usually consider “important” to share with the society to encourage

“discourse on public issues, ‘the highest rung of the hierarchy of First Amendment

values.’ ”

at 359 (quoting Snyder v. Phelps,

(2011)). But the court

prudently declined to “say that all recording is protected or desirable” and declined to

engage with plaintiffs’ arguments that the “act of recording is ‘inherently expressive

conduct,’ like painting, writing a diary, dancing, or marching in a parade.”

at 359–60.

The Tenth Circuit took a similarly careful approach in W. Watersheds Project,

. It held recordings of animals and habitat conditions protected speech-

creation because “[a]n individual who photographs animals or takes notes about habitat

conditions is creating speech in the same manner as an individual who records a police

encounter” and then “use[s] the speech-creating activities at issue to further public debate.”

at 1196–97 (leaning on long-held understandings that “a major purpose of the First

Amendment was to protect the free discussion of governmental affairs” (quoting Ariz. Free

Enter. Club’s Freedom Club PAC v. Bennett,

, 755 (2011))).

The Seventh Circuit offers more of the same. “The act of making an audio or

audiovisual recording,” the court reasons, “is necessarily included within the First

Amendment’s guarantee of speech and press rights” because it flows from “the right to

37 USCA4 Appeal: 20-1776 Doc: 83 Filed: 02/23/2023 Pg: 38 of 60

disseminate the resulting recording.” Alvarez,

. 9 We follow these circuits

and decline to answer today whether all manner of recording deserves First Amendment

protection.

Invalidating the challenged provisions in their entirety poses a yet more fundamental

problem. It should go without saying that, before a court can invalidate a statute on its

face, it should understand what the statute “actually authorizes.” Patel,

(citing Planned Parenthood of Se. Pa. v. Casey,

(1992)). Patel helpfully tees

up the problem. The case involved a Los Angeles ordinance compelling hotels to disclose

guest records to the police. After determining that the ordinance violated the Fourth

Amendment’s warrant requirement in many of its applications, the Court, as here, had to

decide whether to sever those offending applications or invalidate the entire ordinance.

The Court acknowledged some constitutional “applications” remained—the ordinance

could be applied in exigent circumstances, when a warrant has been issued, or by consent—

but explained those searches were permissible even without the ordinance and as such

“irrelevant” to the analysis. Id. at 419. The Court was thus able to strike down the statue

in full. Id.; see also City of Houston v. Hill,

, 460–61 (1987) (considering

9 We recognize that at least one court has gone further. In Animal Legal Defense Fund v. Wasden, the Ninth Circuit found “the recording process” itself “inherently expressive” because it necessitates “decisions about content, composition, lighting, volume, and angles.”

(9th Cir. 2018). But we are persuaded by the Third Circuit’s reasoning in Fields, that PETA’s core aim here is to record newsworthy content, not “create art.”

. Nor has the Ninth Circuit been able to stress-test the outer limits of its expansive ruling—Wasden itself concerned only recordings of “the conduct of an agricultural production facility’s operations.”

(quoting Idaho Code § 18– 7042(1)(d)).

38 USCA4 Appeal: 20-1776 Doc: 83 Filed: 02/23/2023 Pg: 39 of 60

only “the enforceable portion of the ordinance,” not potential applications that were in fact

“pre-empted by the Texas Penal Code”).

The sober appraisal of this limited pre-enforcement record precludes a definite

resolution of this point. North Carolina contends the Act has many applications beyond

newsgathering: it “[c]ould stop an enterprising campaign intern from going undercover to

record a rival political party’s election strategy”; “could stand in the way of a hate group’s

efforts to infiltrate a house of worship”; “could provide a damages remedy to a medical

clinic whose patient information is exposed to the public.” Opening Br. 5. But the State

already has common-law trespass prohibitions, trade secret laws, and statutes authorizing

non-disclosure agreements. E.g.,

(setting out trade-secrets

protections); Hartman v. W.H. Odell & Assocs., Inc.,

(N.C. Ct. App.

1994) (approving of certain non-compete agreements); Chemimetals Processing, Inc. v.

McEneny,

, 376–77 (N.C. Ct. App. 1996) (acknowledging validity of non-

disclosure agreements).

Even then, North Carolina insists, the Act has tangible value beyond prohibiting

newsgathering because it provides a meaningful damages remedy. As proof, it cites three

cases brought under (b)(5) for misappropriation of consumer information and fraud. See

Resp.-Reply Br. 49–50. But those citations are to complaints, two of which have been

dismissed and the other stayed. See Tucker Auto-Mation of N.C., LLC v. Rutledge, No.

1:15-CV-893,

(M.D.N.C. Sep. 26, 2016); Budler v. MacGregor, No.

18 CVS 1153,

(N.C. Super. Ct. Feb. 16, 2018); Harris v. Peters, No.

18 CVS 1646,

(N.C. Super. Ct. Feb. 27, 2018). So, six years in, any

39 USCA4 Appeal: 20-1776 Doc: 83 Filed: 02/23/2023 Pg: 40 of 60

applications of the Act to non-speech activities remain hypothetical. And regardless, Patel

teaches that “[a]n otherwise facially unconstitutional statute cannot be saved from

invalidation based solely on the existence of a penalty provision that applies when [conduct

is] not actually authorized by the statute.” 576 U.S. at 418, 419 n.1.

Whatever the Act’s real applications beyond newsgathering, the material point

today is that these questions remain unanswered, lurking in the background and warning

us away from prejudging the entire Act in a pre-enforcement challenge. And so we “follow

our traditional practice of adjudicating difficult and novel constitutional questions only in

concrete factual situations.” Ferber, 458 U.S. at 780–81 (1982) (Stevens, J., concurring in

the judgment).

C.

All of that discussion presumes, of course, that we can sever newsgathering

applications from the Act without “rewriting state law” or “circumvent[ing] the intent of

the legislature.” Ayotte v. Planned Parenthood of N. New England,

, 329–30

(2006) (internal quotation marks, brackets, and citations omitted). We think yes. Although

the Act does not contain a severability clause, its text professes broad goals: to provide

“damages for exceeding the scope of authorized access to property.” N.C. Gen. Stat.

§ 99A-2. And the parties from the start have presumed severance appropriate: PETA has

asked us to declare only four of the Act’s provisions unconstitutional and North Carolina

never objected to that request. On the contrary, as discussed, North Carolina advanced

many conceivable applications of the Act beyond newsgathering. It has also cited

40 USCA4 Appeal: 20-1776 Doc: 83 Filed: 02/23/2023 Pg: 41 of 60

legislative history signaling the Act covers more than just undercover investigations: it

“passed by overwhelming, bipartisan margins in both chambers” and several legislators

have expressed their support for the Act because it “protect[s] private property.” Resp.-

Reply Br. at 42–43 (citing J.A. 174–75, 236–37, 202, 244, 261–62, 279, 304, 313). 10 Under

these circumstances, we find no evidence that the “remainder of the statute” cannot

“retain[ ] its effectiveness.” Brockett,

; State v. Fredell,

(N.C. 1973) (holding a statute divisible even though it did not contain a severability

clause).

We accordingly hold the Act unconstitutional when applied to bar newsgathering

activities PETA wishes to conduct and sever that application from the remainder of the

Act. Our analysis likely means the same result must follow for most (if not all) who engage

in conduct analogous to PETA’s. But we leave it to the district courts to make such findings

in the first instance.

V.

PETA alternatively asks us to invalidate the challenged provisions on their face as

overbroad because “a substantial number of [their] applications are unconstitutional,

judged in relation to the statute’s plainly legitimate sweep.” Stevens,

(quoting Wash. State Grange,

). Adding to the hypotheticals already

10 We do not mean to suggest that legislative history speaks authoritatively to severability, only that North Carolina’s reference to that history demonstrates North Carolina’s agreement that we can sever certain applications of the Act.

41 USCA4 Appeal: 20-1776 Doc: 83 Filed: 02/23/2023 Pg: 42 of 60

discussed throughout this opinion, PETA contends the four challenged provisions would

further prohibit “newspapers from publishing articles on public whistleblowers,” punish

bona fide “employees who gather and report evidence of environmental pollution or harm

to endangered species, as federal law encourages,” as well as employees who, “outside

their duties, gather evidence of contracting fraud to the federal government under the

federal False Claims Act.” Resp. Br. 62 (citing

(b)(3)(A);

(d); 31 U.S.C. §§ 3729–33). And PETA’s amici press that the Act creates liability

for employees reporting under a wide variety of workplace safety statutes, including the

Occupational Safety and Health Act,

(c); the Fair Labor Standards Act,

§ 218c; the Federal Railroad Safety Act,

(b); and North Carolina’s Burt’s

Law, which prohibits abuse or harm to mentally ill persons, N.C. Gen. Stat. Ann. § 122C-

66. See Br. of Law Professors Amici 29; see also Br. of the Reporters Committee Amici

15 (insisting the Act chills “all manner of constitutionally protected newsgathering

activities and reporter-source communications”); Br. of Amici Curiae United Farm

Workers of America in Support of Pls.-Appellees 10–15, 18–21 (explaining that the Act

disincentivizes farmworker’s “investigation and documentation” of workplace conditions

as well as their unions’ assistance in “documenting and reporting” of OSHA violations,

among others). By all accounts, the sheer breadth of these restrictions raises red flags.

That is why we faulted the legislature for failing to produce evidence that it considered

less-abridging alternatives and found them nonviable. But PETA misapprehends what

these restrictions cash out to mean in the overbreadth context.

42 USCA4 Appeal: 20-1776 Doc: 83 Filed: 02/23/2023 Pg: 43 of 60

The overbreadth doctrine offers prophylactic medicine to combat a statute’s

“chilling” of constitutionally valuable expression. Massachusetts v. Oakes,

(1989) (plurality op.). Reflecting our long-held understanding that “the First

Amendment needs breathing space,” the 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, 413 U.S.

at 611–12. As a corollary of those doctrinal roots, overbreadth challenges typically arise

when a litigant wishes to avoid sanction for unprotected conduct, using the overbreadth

vehicle to get around the customary standing barriers.

.

On the flip side, courts usually do not entertain overbreadth challenges where, as

here, “the parties challenging the statute are those who desire to engage in protected speech

that the overbroad statute purports to punish,” Brockett, 472 U.S. at 503—not because

courts read some technical requirement into the doctrine, but because they can easily

adjudicate such a challenge head-on. In Brockett, for example, the Court examined a

Washington statute that declared a “moral nuisance” any place “where lewd films are

publicly exhibited as a regular course of business.” Id. at 493 (citation omitted). The

problem was the statute’s open-ended definition of “lewd,” which “reached material that

aroused only a normal, healthy interest in sex.” Id. at 494. The Court agreed that definition

could be characterized as overbroad, but observed any such overbreadth was not

“incurable” and would not “taint all possible applications of the statute.” Id. at 504.

Employing the “normal” severability analysis, the Court simply invalidated the statute

43 USCA4 Appeal: 20-1776 Doc: 83 Filed: 02/23/2023 Pg: 44 of 60

“insofar as [‘lewd’] is to be understood as reaching protected materials.” Id. Taking the

same tack in Oakes, the Court declined to consider an overbreadth challenge where “the

defendant’s conviction could have been—and indeed was—reversed on a narrower and

alternative ground, i.e., that the statute was unconstitutional as applied” and there was

therefore “no need for any comment on the overbreadth challenge.” 491 U.S. at 582

(plurality op.) (citing Bigelow v. Virginia,

(1975)).

Those cases reflect a common-sense principle that where as-applied challenges are

available to the litigant, where the litigant has no need to argue that the statute abridges

other persons’ rights but can stand on her own footing, overbreadth should not be used to

short-circuit the “normal” severability analysis. See Brockett,

. Instead,

the statute should “be declared invalid to the extent that it reaches too far, but otherwise

left intact.”

Admittedly, a few cases resort to overbreadth even where litigants’ own conduct

falls under the First Amendment shield. But those cases offer good reasons to consider

situations beyond the “flesh-and-blood” legal issues directly before the courts, Ferber,

(citation omitted)—such as, for example, when “as applied method of review

[would] involve[ ] a prolonged and costly process of reshaping an overbroad statute.”

Note, The First Amendment Overbreadth Doctrine,

, 882 (1970). Jews

for Jesus, for example, involved a resolution purporting to ban all First Amendment activity

at the Los Angeles airport. 482 U.S. at 575. Although the Court contemplated case-by-

case adjudication, it ultimately rejected such an approach because the resolution, which

prohibited “all protected expression” in all areas of the terminal, could not “be limited by

44 USCA4 Appeal: 20-1776 Doc: 83 Filed: 02/23/2023 Pg: 45 of 60

anything less than a series of adjudications, and the chilling effect of the resolution on

protected speech in the meantime would make such a case-by-case adjudication

intolerable.” Id. at 574, 576; cf. Citizens United,

(invalidating the entire

statute to avoid “prolong[ing] the substantial, nationwide chilling effect,” albeit without

ruling directly on overbreadth principles because petitioners did not make an overbreadth

challenge).

The critical take-away here is that overbreadth provides a “second type of facial

challenge” meant to address a specific problem. Stevens,

(citation omitted).

If the usual inquiry considers whether an as-applied ruling makes sense in terms of the

decision’s internal logic and the legislature’s intent, see supra, Part IV.A, the overbreadth

doctrine asks whether a court can resolve a case on narrower ground without chilling

cherished expression. See Hicks,

(that courts may invalidate entire statutes

because the legislature meant them to “stand or fall together” does not mean courts can

“properly decree that they fall by reason of the overbreadth doctrine”).

Here, the Act (subject to the Patel analysis) regulates at least some non-expressive,

unprotected conduct, like “remov[ing] the employer’s data,” “interfer[ing] with the

ownership or possession of real property,” and perhaps even “placing . . . an unattended

camera” in the CEO’s office. N.C. Gen. Stat. § 99A-2(b)(1), (3), (5). We discussed at

length above how these more general regulations of conduct do not insulate the Act from

the First Amendment’s wringer when the Act bars speech. And we mirrored that approach

on the back end under the “normal” severability analysis by enjoining only the applications

that pare protected newsgathering activities. Absent any indication that the Act “as a

45 USCA4 Appeal: 20-1776 Doc: 83 Filed: 02/23/2023 Pg: 46 of 60

whole” chills First Amendment freedoms, we follow the same principles under

overbreadth. Hicks,

(2003); see Broadrick,

(declining to

enjoin the entire statute because the court’s authority under the overbreadth doctrine, “a

limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids

the State to sanction moves from ‘pure speech’ toward conduct” a State has legitimate

power to regulate); Button,

(1963) (holding that Virginia failed to “justify

the broad prohibitions” imposed through a barratry law, but enjoining the statute only as

applied to the politically oriented litigating efforts of the NAACP).

We enjoin North Carolina from applying the Act to PETA’s newsgathering

activities but sever and reserve all other applications for future case-by-case adjudication.

VI.

For the foregoing reasons, the district court’s judgment is

AFFIRMED IN PART AND REVERSED IN PART.

46 USCA4 Appeal: 20-1776 Doc: 83 Filed: 02/23/2023 Pg: 47 of 60

RUSHING, Circuit Judge, dissenting:

The North Carolina Property Protection Act authorizes “the owner or operator of [a]

premises” to sue for “damages sustained” as a result of certain trespasses into “nonpublic

areas” of the premises. N.C. Gen. Stat. § 99A-2(a). 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. Maj.

Op. at 36, 41 (emphasis omitted). 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.

I.

A.

The Property Protection Act provides that “[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 those areas is liable to the owner or operator of the premises for

any damages sustained.” N.C. Gen. Stat. § 99A-2(a). The statute identifies five acts that

“exceed[] a person’s authority to enter the nonpublic areas of another’s premises” as

follows:

(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.

47 USCA4 Appeal: 20-1776 Doc: 83 Filed: 02/23/2023 Pg: 48 of 60

(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.

(5) An act that substantially interferes with the ownership or possession of real property.

Id. § 99A-2(b). The Act creates joint liability for “[a]ny person who intentionally directs,

assists, compensates, or induces another person to violate this section.” Id. § 99A-2(c). A

successful plaintiff may receive equitable relief, costs and fees, compensatory damages “as

otherwise allowed by State or federal law,” and exemplary damages of $5,000 per day “as

otherwise allowed by State or federal law.” Id. § 99A-2(d). The Act explicitly preserves

existing protections for employees reporting wrongdoing under a laundry list of state

statutes incorporated by reference and exempts from liability parties who are covered by

those statutes. 1 Id. § 99A-2(e). It also does not apply to law enforcement or governmental

agency investigations. Id. § 99A-2(f).

1 Specifically, subsection (e) lists “Article 14 of Chapter 126,” which protects state employees who report improper activities, see

et seq., and “Article 21 of Chapter 95,” which protects employees who initiate inquiries or take part in investigations of any kind (or threaten to do so) with respect to the Workers’ Compensation Act, the Wage and Hour Act, the Occupational Safety and Health Act of North Carolina, the Mine Safety and Health Act, laws prohibiting discrimination based on blood disorders 48 USCA4 Appeal: 20-1776 Doc: 83 Filed: 02/23/2023 Pg: 49 of 60

PETA has not been sued under the Act. In fact, the parties have not identified any

case in which a plaintiff has sued under the Act based on investigative reporting, speech,

or any expressive activity. “So, six years in, any applications of the Act to []speech

activities remain hypothetical.” Maj. Op. at 39–40. Some suits have been filed for fraud

and misappropriation of consumer information and trade secrets. See Maj. Op. at 39 (citing

complaints). But North Carolina courts have not yet interpreted the Act in any pertinent

respect. Given the absence of interpretation or application of the Act by state courts, we

should be cautious in construing its terms in the first instance and opining about the

constitutionality of hypothetical future applications of it. See Arizonans for Official

English v. Arizona,

(1997) (“Warnings against premature adjudication of

constitutional questions bear heightened attention when a federal court is asked to

invalidate a State’s law, for the federal tribunal risks friction-generating error when it

endeavors to construe a novel state Act not yet reviewed by the State’s highest court.”); cf.

INS v. St. Cyr,

(2001) (“[W]e are obligated to construe the statute to

avoid [constitutional] problems” where “an alternative interpretation of the statute is fairly

possible.” (internal quotation marks omitted)).

B.

I would focus on PETA’s challenge to the Act as applied to the specific activity in

which it wishes to engage. PETA wants to conduct undercover investigations by sending

or genetics, the law on National Guard Reemployment Rights, regulations on pesticides, the Drug Paraphernalia Control Act of 2009, and laws prohibiting discrimination against an employee for attending court-ordered activities for parents of delinquent juveniles, see

(a). 49 USCA4 Appeal: 20-1776 Doc: 83 Filed: 02/23/2023 Pg: 50 of 60

its employees to gain secondary employment at places like animal laboratories, where they

will secretly record, including by placing unattended cameras, and then publicize their

findings to the detriment of the duped employers and for the benefit of their primary

employer, PETA. PETA contends that the Act prohibits this conduct and therefore violates

the First Amendment.

Our Court has already considered this exact mode of operation and held that North

Carolina tort law may enforce a damages remedy without running afoul of the First

Amendment. In Food Lion, Inc. v. Capital Cities/ABC, Inc., undercover reporters working

for ABC took jobs at Food Lion grocery stores, where they spent their work hours secretly

filming meat-handling practices.

, 510–511 (4th Cir. 1999). ABC then used

some of the recorded footage in a news broadcast that was sharply critical of Food Lion.

Food Lion sued—not for defamation but for breach of the duty of loyalty and trespass,

among other things. Id. at 511. We affirmed the verdict in favor of Food Lion on those

claims. Id. at 510. As to “the tort of disloyalty,” we concluded the reporters could be liable

under North Carolina law because they “served ABC’s interest, at the expense of Food

Lion, by engaging in the taping for ABC while they were on Food Lion’s payroll.” Id. at

516. In other words, they acted “adversely to the second employer for the benefit of the

first.” Id. As to trespass, we similarly concluded the reporters could be liable under North

Carolina law because they committed “a wrongful act in excess of [their] authority to enter

Food Lion’s premises as employees” when they “videotaped in non-public areas of the

store and worked against the interests of [their] second employer, Food Lion, in doing so.”

Id. at 518–519.

50 USCA4 Appeal: 20-1776 Doc: 83 Filed: 02/23/2023 Pg: 51 of 60

Importantly, we rejected ABC’s First Amendment objection and affirmed the

district court’s refusal “to subject Food Lion’s claims to any level of First Amendment

scrutiny.” Id. at 520. Although we acknowledged “First Amendment interests in

newsgathering,” id. (internal quotation marks omitted), we also recognized, based on the

Supreme Court’s decision in Cowles, 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,’” id. (quoting Cohen v. Cowles Media Co.,

(1991)). We reasoned that “[t]he torts [the reporters] committed, breach of

the duty of loyalty and trespass, fit neatly into the Cowles framework. Neither tort targets

or singles out the press. Each applies to the daily transactions of the citizens” of North

Carolina. Id. at 521. We considered and distinguished Turner Broadcasting System, Inc.

v. FCC,

(1994), and Barnes v. Glen Theatre Inc.,

(1991). See

Food Lion, 194 F.3d at 521–522. And we ultimately concluded that “[h]ere, as in Cowles,

heightened scrutiny does not apply because the tort laws (breach of duty of loyalty and

trespass) do not single out the press or have more than an incidental effect upon its work.”

Id. at 522. 2

2 At the same time, we rejected Food Lion’s request for publication damages as an “end-run around First Amendment strictures” forbidden by Hustler Magazine v. Falwell,

(1988). Food Lion,

. As we explained, Food Lion could not “recover defamation-type damages under non-reputational tort claims[] without satisfying the stricter (First Amendment) standards of a defamation claim.”

The Property Protection Act limits compensatory and exemplary damages to those “otherwise allowed by State or federal law,” which would include these First Amendment strictures. N.C. Gen. Stat. § 99A-2(d)(2), (4). 51 USCA4 Appeal: 20-1776 Doc: 83 Filed: 02/23/2023 Pg: 52 of 60

Our decision in Food Lion controls this case. As applied to the activities PETA

desires to undertake, each of the contested provisions of the North Carolina Property

Protection Act accords with the generally applicable conduct regulations this Court upheld

against a First Amendment challenge in Food Lion.

To begin with the most obvious, paragraph (b)(3) forbids exceeding one’s authority

to enter the “nonpublic areas of another’s premises” by “[k]nowingly or intentionally”

placing an “unattended camera or electronic surveillance device and using that device to

record images or data.” N.C. Gen. Stat. § 99A-2(a), (b)(3). As we acknowledged in Food

Lion, this is a generally applicable prohibition on trespass. See Food Lion, 194 F.3d at

518–519 (discussing Miller v. Brooks,

(N.C. Ct. App. 1996), in

which the court held that “[e]ven an authorized entry can be trespass if a wrongful act is

done in excess of and in abuse of authorized entry,” such as “install[ing] a hidden videotape

camera” and using it to record); see also Keyzer v. Amerlink, Ltd.,

(N.C. Ct. App. 2005) (affirming that Miller stands for this proposition).

Similarly, paragraph (b)(5) is a classic statement of the law of trespass. That

paragraph prohibits exceeding one’s authority to enter a nonpublic area of another’s

premises by committing an “act that substantially interferes with the ownership or

possession of real property.” N.C. Gen. Stat. § 99A-2(b)(5). As we recognized in Food

Lion, generally applicable trespass law protects against unauthorized “‘interference with

the ownership or possession of land.’”

(quoting Desnick v. Am. Broad.

Co.,

, 1353 (7th Cir. 1995)); see also id. (describing “the interest underlying

52 USCA4 Appeal: 20-1776 Doc: 83 Filed: 02/23/2023 Pg: 53 of 60

the tort of trespass” as “the ownership and peaceable possession of land” (citing, inter alia,

Matthews v. Forrest,

(N.C. 1952)).

Paragraphs (b)(1) and (2) forbid employees “to breach the . . . duty of loyalty” by

“us[ing]” information from documents “capture[d] or remove[d]” or “recording[s]” made

in “nonpublic areas” of the employer’s premises “without authorization.” N.C. Gen. Stat.

§ 99A-2(b)(1)–(2). As applied to PETA, those paragraphs correlate with the generally

applicable employment tort we upheld against constitutional challenge in Food Lion. See

Food Lion,

(“If, for example, an employee of a competing grocery chain

hired on with Food Lion and videotaped damaging information in Food Lion’s non-public

areas for later disclosure to the public, these tort laws would apply with the same force as

they do against [the reporters] here.”).

Food Lion acknowledged that laws that “single out the press,” have “more than an

incidental effect upon its work,” or directly regulate an act that “necessarily involve[s]

expression” would be subject to First Amendment scrutiny. Food Lion,

.

But the Act targets trespass and breach of the duty of loyalty, which—just like the torts in

Food Lion—do not necessarily involve expression or impose a unique burden on the press.

Applying our precedent, then, the Act is generally applicable and does not merit heightened

First Amendment scrutiny simply because it may be enforced equally against an

investigative reporter and a business competitor. See

at 521–522; see also, e.g., Planned

Parenthood Fed’n of Am., Inc. v. Newman,

, 1135 (9th Cir. 2022) (rejecting

First Amendment challenge and affirming damages for trespass, fraud, and state

wiretapping violations awarded against defendants who disclosed secretly recorded videos

53 USCA4 Appeal: 20-1776 Doc: 83 Filed: 02/23/2023 Pg: 54 of 60

of Planned Parenthood staff because “the pursuit of journalism does not give a license to

break laws of general applicability”).

C.

Without attempting to distinguish Food Lion, the majority simply asserts that

decision does not control here. The majority correctly observes that the Supreme Court of

North Carolina subsequently held that the State does not recognize an independent claim

for breach of the duty of loyalty. See Dalton v. Camp,

(N.C. 2001);

Maj. Op. at 14. But by passing the Act, the General Assembly codified that cause of action,

so this Court’s previous constitutional analysis of that tort—not to mention the law of

trespass—continues to apply here. The state court’s decision did not, and could not,

undermine this Court’s First Amendment analysis.

D.

Moving beyond its disregard of Food Lion, the underpinnings of the majority’s

decision are unpersuasive. I highlight just a few of its foundational problems.

First, an interest in newsworthy information does not confer a First Amendment

right to enter private property (or a right to exceed the bounds of one’s authority to enter)

and secretly record. Newsgathering enjoys some constitutional protection because of its

connection to speech and the press, see Branzburg v. Hayes,

(1972), but

the mere act of recording by itself is not categorically protected speech. The majority

therefore rightly rejects the Ninth Circuit’s decision in Animal Legal Defense Fund v.

Wasden,

(9th Cir. 2018). See Maj. Op. at 38 n.9. Other circuits to

consider restrictions on recording have extended First Amendment protection to recording

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matters of public interest in public spaces because of its connection with speech of public

concern. See, e.g., Glik v. Cunniffe,

(1st Cir. 2011); Fields v. City of

Philadelphia,

(3d Cir. 2017); Turner v. Lieutenant Driver,

,

688–690 (5th Cir. 2017); ACLU of Ill. v. Alvarez,

, 595 & n.4, 600 (7th Cir.

2012); W. Watersheds Project v. Michael,

, 1195–1196 (10th Cir. 2017);

Smith v. City of Cumming,

(11th Cir. 2000). We have done the same,

holding the First Amendment protects “livestreaming a police traffic stop.” Sharpe v.

Winterville Police Dep’t, --- F.4th ---,

, at *3 (4th Cir. Feb. 7, 2023).

The majority does not grapple with this distinction between recording in public spaces and

unauthorized recording on private property. See Maj. Op. at 36–38 (discussing some of

these cases).

As the Supreme Court has explained, “[t]he right to speak and publish does not carry

with it the unrestrained right to gather information” in violation of the rights of others.

Zemel v. Rusk,

(1965) (observing, as an example, that entry into the White

House is not a First Amendment right, even if exclusion diminishes the citizen’s

opportunity to gather information); see also Cowles,

(“The press may not

with impunity break and enter an office or dwelling to gather news.”); Branzburg,

(“Although stealing documents or private wiretapping could provide newsworthy

information, neither reporter nor source is immune from conviction for such conduct,

whatever the impact on the flow of news.”). But under the majority’s rule, if the estranged

wife who placed the hidden camera in Miller had instead been a household employee

looking for a juicy news story to sell (and, perhaps, had placed the camera in the parlor

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rather than the bedroom), the First Amendment would have insulated her from liability.

See Miller,

; Maj. Op. at 36 (“[I]t suffices to hold only that recording in

the employer’s nonpublic areas as part of newsgathering constitutes protected speech.”).

Why tort law should bend to the trespasser in one instance but not the other is, at best,

unclear.

Second, the majority seriously misconstrues the Act to characterize it as a speech

regulation. For example, the majority reasons at various points that paragraphs (b)(1) and

(2) reach only “speak[ing] out against the employer,” Maj. Op. at 23, or only “certain types

of disloyal speech: disclosure of recordings,” Maj. Op. at 30. That is simply not true. A

person can “use” captured data or recorded images to breach the duty of loyalty without

ever disclosing the recording or speaking against the employer. Using recorded

information to launch a competing product, to steal customers, or to blackmail management

come to mind. This is because using information is not the same as speaking. Cf. Bartnicki

v. Vopper,

, 526–527 (2001) (“[T]he prohibition against the ‘use’ of the

contents of an illegal interception . . . is . . . a regulation of conduct,” unlike a “naked

prohibition against disclosures” which “is fairly characterized as a regulation of pure

speech.”).

Laws can undoubtedly prohibit “using” information to harm another person or

breach an obligation without raising any First Amendment concern. The Act targets using

stolen information or secret recordings to facilitate a tortious act: breaching the duty of

loyalty to an employer. That is not a regulation on speech, even if some acts of disloyalty

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may be accomplished with words, such as persuading a former colleague to work for a

competing company or revealing a trade secret. See Maj. Op. at 20.

Similarly for paragraph (b)(5), the majority conjures outlandish hypothetical

applications far beyond the provision’s prohibition on entering nonpublic areas of another’s

premises and substantially interfering with “the ownership or possession of real property.”

N.C. Gen. Stat. § 99A-2(b)(5); see, e.g., Maj. Op. at 21 (reporting a conversation with a

colleague that ultimately “leads the State to shut down the facility”), 27 (reporting

violations of laws or regulations that lead to a temporary closure). Those imaginary

applications stretch this traditional trespass rule far beyond its ordinary scope. And in the

process, the majority ignores basic legal principles like federal preemption and the

requirement to read state laws—including whistleblower protections—in harmony with

one another.

Lastly, the majority’s alternative rationale—content discrimination—does not hold

water. See Maj. Op. at 11–12, 24–25. The Act distinguishes between trespassers and non-

trespassers, between documents taken from another without permission and documents

taken with permission, between those who violate their duty of loyalty to an employer and

those who do not. The majority stretches Reed v. Town of Gilbert,

(2015),

past its breaking point and then some in saying these are impermissible categories of

discrimination based on speaker and viewpoint. See City of Austin v. Reagan Nat’l Advert.

of Austin, LLC,

(2022) (cautioning against overreading Reed’s

“function or purpose” language). The crux of paragraphs (b)(1) and (2) is disloyal

behavior. Those paragraphs do not draw “facial distinctions based on a message,” and they

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are easily “justified without reference to the content of” any affected speech. Reed, 576

U.S. at 163–164 (internal quotation marks omitted). In particular, those paragraphs

authorize an enhanced tort remedy for a heightened privacy invasion—one that is

intentionally harmful by breaching an employee’s duty of loyalty and causing actual

damage to an employer.

As for paragraph (b)(3), the majority opines that it applies only to employees and

therefore discriminates among speakers. See Maj. Op. 25–26. But the majority’s effort to

read a content-based purpose into paragraph (b)(3) goes nowhere because the provision

targets trespassory conduct, not speech. A “journalist invited to profile a company” is not

a trespasser, regardless of the content of her ultimate review, because she has the

employer’s permission to record in nonpublic areas, and “a state enforcement agency” is

explicitly exempted by subsection (f), regardless of the content of the enforcement officer’s

report. Maj. Op. at 26.

Moreover, it is far from clear that paragraph (b)(3) is limited to employees as the

majority suggests. Although paragraph (b)(3) applies to placing an unattended recording

device on “the employer’s premises,” it does not specify who places that device. As the

majority points out, the reference to the employer’s premises could suggest paragraph

(b)(3) applies only to employee activity, consistent with (b)(1) and (b)(2). But the canon

of consistent usage on which the majority relies cuts the other way too: unlike (b)(1) and

(2), paragraphs (b)(3), (4), and (5) do not explicitly limit themselves to employees but

would presumably apply to “[a]ny person,” as stated in subsection (a). See A. Scalia & B.

Garner, Reading Law: The Interpretation of Legal Texts 170 (2012) (“[A] material

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variation in terms suggests a variation in meaning.”). After all, subsection (b) defines the

conduct for which subsection (a) provides a remedy—the two operate in tandem and must

be read as such. Whatever the meaning of paragraph (b)(3), these interpretive possibilities

demonstrate that the provision is less concerned with who the bad actor is than with what

the bad actor is doing—namely, trespassing by acting in excess of his authority to be on

the premises.

III.

Because I would hold the Act constitutional as applied to PETA’s undercover

reporting tactics, I would proceed to address its overbreadth argument. In the First

Amendment context, “a law may be invalidated as overbroad if a substantial number of its

applications are unconstitutional, judged in relation to the statute’s plainly legitimate

sweep.” Ams. for Prosperity Found. v. Bonta,

(2021) (internal

quotation marks omitted). PETA “bears the burden of demonstrating, from the text of the

law and from actual fact, that substantial overbreadth exists.” Virginia v. Hicks,

(2003) (internal quotation marks and brackets omitted).

PETA has not carried its burden. Its facial challenge rests entirely on speculation

and hypotheticals that ignore the Act’s textual limits and whistleblower protections laws.

And when it comes to assessing the Act’s scope, PETA refuses to acknowledge the

possibility of even a single constitutional application of the Act. Because PETA denies the

Act’s vast legitimate sweep—including preventing and compensating misappropriation,

sabotage, espionage, extortion, unfair competition, and theft of trade secrets, to name a

few—it fails to explain how unconstitutional applications of the Act could be substantial

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by comparison, a requirement we must apply “vigorously.” United States v. Williams,

(2008).

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