Fundamental property rights are under assault. Your right to say who can be on your property, and what they can do there, will be limited to the point of irrelevance unless the Supreme Court agrees to review a lower-court decision that would curtail fundamental property rights.

In its decision earlier this year in PETA et al v. North Carolina and North Carolina Farm Bureau, the Fourth Circuit Court of Appeals contradicted its own case law and paved the way for unbridled trespassing by fraudulent employees. The case stems from a law passed by the North Carolina legislature in 2016, called the North Carolina Property Protection Act (NCPPA). The law prohibits employees from recording or using electronic surveillance in non-public areas.

While this law protected ordinary Americans’ property rights and shielded them from private surveillance, it raised the ire of powerful D.C. interests. People for the Ethical Treatment of Animals and allied activists, including the Animal Legal Defense Fund, challenged North Carolina’s law, staking their claim on a purported violation of their First Amendment rights.

PETA readily admitted in court its desire to engage in undercover animal-cruelty investigations. In a typical PETA investigation, members submit employment applications to spying targets and do not disclose that they are PETA employees. Once hired, the undercover PETA employees enter their new employers’ private areas to gather information about that employers’ treatment of animals.

This type of behavior raises legal issues that courts have confronted before. In 1992, for example, two ABC News producers lied on their employment applications to get jobs at Food Lion grocery stores. They falsified references, lied about their work experience, and neglected to mention their concurrent employment at ABC News. In the two weeks they worked at Food Lion, they secretly recorded the stores’ meat-department employees preparing food and discussing the company and its policies.

The ABC producers used the surveillance material to produce a Primetime special. Food Lion then sued ABC, claiming fraud, trespass, and disloyalty. The sensible courts of the 1990s found that the producers had trespassed and declined to apply a First Amendment analysis, holding that the law of trespass is one of general application from which the press cannot be exempt.

In an about-face, the same court that protected privacy rights in Food Lion has now sided with PETA. In its recent ruling, it held that the NCPPA infringes on PETA’s First Amendment rights. This ruling contradicts the court’s past holding, which held that the First Amendment does not permit trespassing and spying on the private property of another.

What was rightly understood as a law of general application just 30 years ago, the court now condemns as overly broad. The court that once condemned trespassing now encourages it. Respect for fundamental property rights has gone up in smoke.

This case is not about employee whistleblowers spotlighting wrongdoing. It is about agents of powerful, rich, D.C.-based interest groups trespassing and spying on private property.  The circuit court’s decision in PETA invites well-funded activists to play a dangerous game of chicken with farmers. But its reach extends far beyond agriculture. It is based on the astonishing constitutional proposition that freedom of speech can include trespassing, filing fraudulent employment applications, entering employers’ offices under false pretenses, and planting hidden cameras and eavesdropping devices.

If the Fourth Circuit’s decision is allowed to stand, it will profoundly impact not only business owners or farmers harassed by animal-rights activists but also anyone who wants to restrict trespass and unwanted private surveillance of his properties. The Supreme Court should grant cert in this matter to make clear the limits of acceptable trespass and to preserve some modicum of property rights for the American people. 

Photo by Jessica Rinaldi/The Boston Globe via Getty Images


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