Petitions of the week

North Carolina seeks to enforce undercover workplace-recording ban against PETA

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

People for the Ethical Treatment of Animals conducts investigations around the country as part of its efforts to combat the mistreatment of animals. To accomplish these exposés, PETA’s members occasionally pose as employees of other businesses and secretly record workplace operations taking place in private areas. This week, we highlight cert petitions that ask the court to consider, among other things, PETA’s First Amendment challenge to a North Carolina law that imposes monetary damages on undercover workplace recording.

The law at issue was enacted in response to a dispute between Food Lion and ABC News in North Carolina in the late 1990s. The grocery-store chain sued the news network after two of its reporters posed as Food Lion employees and used hidden cameras and microphones to record in nonpublic areas for a news segment on unsafe food-handling practices. The U.S. Court of Appeals for the 4th Circuit ruled in favor of Food Lion, although the North Carolina Supreme Court later undid a part of that ruling.

Seeking to codify the 4th Circuit’s decision, the state legislature passed the North Carolina Property Protection Act in 2015. As relevant here, the law allows an employer to sue for money damages any employee who “without authorization records images or sound occurring within” the nonpublic areas of the employer’s private property “and uses the recording to breach the person’s duty of loyalty to the employer.”

Soon after the act’s passage, PETA and a number of other food-safety and animal-welfare groups went to court in an effort to prevent the state from enforcing the law against their members. A federal district court in North Carolina ultimately invalidated much of the law. The court reasoned that the recording prohibition was a content-based restriction on speech because it targets speech critical of an employer’s business, and that it therefore triggers a high level of First Amendment scrutiny – a bar that, the court concluded, the law could not pass.

The 4th Circuit upheld that ruling, in part. It rejected PETA’s contention that the law is always unconstitutional, theorizing that the prohibition could be used in a number of ways consistent with the First Amendment. However, it also rejected the state’s contention that the law does not violate the First Amendment because it does not target speech, but instead applies to all kinds of conduct, including trespass and theft. “Laws cast in broad terms can restrict speech as much as laws that single it out,” the majority wrote. At least as applied to newsgathering efforts by PETA and the other groups, the appeals court concluded, the recording ban is unconstitutional.

In Stein v. People for the Ethical Treatment of Animals, Inc., North Carolina Attorney General Josh Stein asks the justices to grant review and reverse the 4th Circuit’s decision. The state contends that the courts of appeals are divided over whether and when unauthorized recordings on nonpublic property are constitutionally protected speech. Moreover, Stein adds, the 4th Circuit’s decision is wrong on the merits.

A trade association representing farmers in North Carolina filed a companion petition urging the justices to review the 4th Circuit’s ruling. Like the attorney general, the association argues that the law is a valid exercise of the state’s power to protect property and business interests.

A list of this week’s featured petitions is below:

Center for Medical Progress v. National Abortion Federation
22-1135
Issue: Whether the district court’s suppression of speech about a high-profile and highly charged issue of public debate is an unconstitutional prior restraint.

Stein v. People for the Ethical Treatment of Animals, Inc.
22-1150
Issue: Whether the First Amendment prohibits applying state tort law against double-agent employees who gather information, including by secretly recording, in the nonpublic areas of an employer’s property and who use that information to breach their duty of loyalty to the employer.

City of Arlington, Texas v. Crane
22-1151
Issues: (1) Whether, where a suspect with an outstanding felony arrest warrant refuses repeated commands to turn off his car and exit the vehicle, clearly states he will not surrender, struggles with an officer in the vehicle while revving the car’s engine, making the tires spin, and causing the car to smoke and sway from side to side, would a reasonable officer, who is half in and half out of the vehicle, conclude that the suspect poses a risk of serious harm to the officer or others; (2) whether a police officer attempting to execute a lawful arrest warrant against a suspect in a car who is struggling with the officer and revving his vehicle, making the tires spin and causing it to smoke and sway side to side, “obviously” violates the suspect’s Fourth Amendment rights by deploying deadly force just before the car reverses running over his fellow officer; and (3) whether the mere existence of a municipal policy of allowing traffic stops can constitute the moving force behind a subsequent unlawful use of force sufficient to impose municipal liability for such use of force.

Roper v. Crane
22-1157
Issues: (1) Whether an objective police officer could have believed it reasonable to shoot a person who had warrants for his arrest, had locked the doors and raised the windows of his vehicle, had verbally and physically refused to comply with police commands to turn off and exit his vehicle, while the person was in the driver’s seat of his vehicle revving the vehicle’s engine and spinning the vehicles tires and one officer was partially inside the vehicle close to an open door, when other officers were nearby outside the vehicle; and (2) if so, whether it would have been obvious to every objective police officer that the driver posed no serious threat to life that warranted shooting the driver to stop a threat of harm.