There are two cases that the U.S. Supreme Court may take up. They both address a key and highly disputed issue. Can a person go undercover and work or visit an entity (such as Planned Parenthood or a facility that affects the treatment of animals) and pretend to be a pure employee or visitor but really (and secretly) record what is going on for news purposes? We have a case set for trial in Washington D.C. where our clients went undercover at CAIR’s headquarters. They documented many things which they put in their investigative book “The Muslim Mafia”. Their work was also used for a film and for news articles. They have been sued for trespass and breach of fiduciary duty as CAIR was infilitrated by a person who worked there as an unpaid intern. The Circuits are highly split on whether this type conduct is protected. Here is a lower court decision on the issue (just a part) that frames the issues. The U.S. Supreme Court is considering whether to resolve this issue. They should as there are complete and partial splits nationwide and we need a single First Amendment rule. The portion below relates to PETA’s investigative activities. The other case involves a conservative oriented group infiltrating Planned Parenthood. So the left and the right and hard to categorize (PETA) all have interests in this issue that strangely unite them in many respects. Here is part of the case.
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 allegedly passed the Act to codify this Court’s decision in Food Lion, Inc. v. Cap. Cities/ABC Inc., 194 F.3d 505 (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, 194 F.3d at 512, 515–16, the North Carolina Supreme Court soon held otherwise, Dalton v. Camp, 353 N.C. 647, 653, 548 S.E.2d 704 (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. 194 F.3d at 522. 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.
(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.
People for the Ethical Treatment of Animals, Inc. v. North Carolina Farm Bureau Federation, Inc. (4th Cir. 2023) 60 F.4th 815, 821
The post 1st Amendment & the Press – Are “Double Agents” Protected? appeared first on Lawyers In Lafayette.