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: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 1 of 60
2 

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 

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 2 of 60
3 

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.

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 3 of 60
4 

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. 

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 4 of 60
5

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.

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 5 of 60
6

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

investigations. North Carolina2 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, 558 U.S. 

310, 327 (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.” Id. at 373 (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.

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 6 of 60
7

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 doubleagent 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 (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.

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 7 of 60
8

(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, 466 F. 

Supp. 3d 547, 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.” Id. at 574.

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. Id. at 573. And because North Carolina never 

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

unconstitutional. Id. 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. Id. 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 

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 8 of 60
9

with less intrusive tools.” Id. at 577 (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. Id. at 571. But 

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

possible myriad legitimate applications.” Id. 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, 760 

F.3d 352, 370 (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 

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 9 of 60
10

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, 505 U.S. 377, 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, 559 U.S. 460, 468 (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., 505 U.S. at 383; it has never exempted speech because of 

its location. See New York v. Ferber, 458 U.S. 747, 763 (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.” 407 U.S. 551, 568 (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.” Id. at 569. Nothing in that case permitted the government

to proscribe speech in nonpublic areas. See Animal Legal Def. Fund v. Kelly, 9 F.4th 1219, 

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

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 10 of 60
11

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, 536 U.S. 150, 154, 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, 959 F.3d 961, 983 (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., 499 F.3d 553, 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, 564 U.S. 786, 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 

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 11 of 60
12

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., 505 U.S. at 386 (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., 482 U.S. 569, 573 (1987) (quoting Perry Educ. Ass’n. v. Perry Local

Educators’ Ass’n, 460 U.S. 37, 46 (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.” 930 F.3d 241, 252–53 (4th Cir. 2019); see also 

Chaker v. Crogan, 428 F.3d 1215, 1223, 1225 (9th Cir. 2005); Holloman ex rel. Holloman 

v. Harland, 370 F.3d 1252, 1281 (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 

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 12 of 60
13

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, 381 U.S. 1, 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. 

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 13 of 60
14

Hicks, 539 U.S. 113, 123 (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. 194 F.3d at 519. 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. Id. at 516. 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, 353 N.C. at 653. 

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, 869 F.3d 1189, 1197 (10th Cir. 2017) (suggesting Zemel

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 14 of 60
15

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., 501 U.S. 663, 

669 (1991)). That is true, as far as that goes. The media must, for example, obey antitrust 

laws. Cowles, 501 U.S. at 669 (citing Associated Press v. United States, 326 U.S. 1 

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, 299 U.S. 353, 365 (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.” 194 F.3d at 518 (quoting Desnick v. Am. Broad. Companies, Inc., 44 

F.3d 1345, 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., 862 F.3d 353, 359 (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”). 

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 15 of 60
16

(1945)). It must pay taxes. Id. (citing Murdock v. Pennsylvania, 319 U.S. 105, 112 (1943)). 

It must answer subpoenas. Id. (citing Branzburg v. Hayes, 408 U.S. 665, 684 (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., 

365 U.S. 127 (1961), and United Mine Workers v. Pennington, 381 U.S. 657 (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. 403 U.S. 15, 16, 

26 (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, 561 U.S. 1, 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, 310 U.S. 296, 308–09 (1940) (reversing a breach-of-thepeace 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 

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 16 of 60
17

tortious interference with business relations protected where interference flows from the 

persuasive effect of speech); Hustler Mag., Inc. v. Falwell, 485 U.S. 46, 57 (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, 961 F.3d 673, 

683 (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, 90 Cornell L. Rev. 1277, 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.” 501 U.S. at 671. 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, 962 F.3d 1111, 1120 (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 

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 17 of 60
18

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. 194 F.3d at 522. 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.” Id. at 522–

23 (quoting Hustler, 485 U.S. at 56). 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, 679 F.3d 583, 602 (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., 501 

U.S. 560 (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, 200 F.3d 

109, 118, 121 (3d Cir. 1999). The Supreme Court affirmed, yet again without mentioning 

Cowles. Bartnicki v. Vopper, 532 U.S. 514 (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., 512 

U.S. 622, 640 (1994). Cowles thus cannot support North Carolina’s unqualified rule that 

generally applicable laws never trigger the First Amendment. 

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 18 of 60
19

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, 334 U.S. 558, 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, 63 U. Chi. L. Rev. 413, 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, 558 

U.S. at 331; see infra, Part IV.A. But legislatures do not write themselves out of the First 

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 19 of 60
20

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, 485 U.S. at 53 

(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.

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 20 of 60
21

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., 564 U.S. 552, 567 (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 punishesthe 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., 442 U.S. 330, 339 (1979) 

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

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 21 of 60
22

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

much protection as its “dissemination.” Sorrell, 564 U.S. at 570. “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.” Id. 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, 679 F.3d 583, 595 (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, 564 U.S. at 571 (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, 460 U.S. 575 (1983))); Citizens United, 558 U.S. 

at 339 (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, 540 U.S. 93, 252 (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., 862 F.3d 353, 358 (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, 848 F.3d 678, 689 (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, 813 F.3d 973, 977 (11th Cir. 2015) (First Amendment harm results from 

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 22 of 60
23

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

Cos., Inc., 44 F.3d 1345, 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. Firsthand 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, 558 U.S. at 339, 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, 

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 23 of 60
24

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, 558 U.S. at 340. 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.” 576 U.S. 155, 163 (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, 142 S. Ct. 1464, 1474 (2022) (favorably citing Reed, 576 U.S. at 159, 160, 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 

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 24 of 60
25

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

Amendment review through formalistic “labels.” NAACP v. Button, 371 U.S. 415, 429 

(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). 

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 25 of 60
26

(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 asrepugnant to the First Amendment 

as are restrictions distinguishing among viewpoints. Citizens United, 558 U.S. at 340. “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, 435 U.S. 765, 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 

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 26 of 60
27

requirement in this Circuit. Reynolds v. Middleton, 779 F.3d 222, 229 (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 

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 27 of 60
28

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, N.C. Gen. Stat. 

§§ 95-241 to 95-242, and Article 14 reaches solely state employees who offer legislative 

testimony on matters of public concern, N.C. Gen. Stat. §§ 126-84 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, 779 F.3d at 229 (“argument unsupported by th[at]

evidence will not suffice to carry the government’s burden”); McCullen v. Coakley, 573 

U.S. 464, 496 (2014) (“Given the vital First Amendment interests at stake, it is not enough 

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 28 of 60
29

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 

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 29 of 60
30

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., 491 U.S. 524, 

540 (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. 

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 30 of 60
31

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, 481 U.S. 739, 745 (1987). PETA retorts that “the dicta in Salerno 

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

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 31 of 60
32

Planned Parenthood, Sioux Falls Clinic, 517 U.S. 1174, 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, 559 U.S. at 472, and “the Court 

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

provisions,” Los Angeles v. Patel, 576 U.S. 409, 415 (2015). E.g., Sorrell, 564 U.S. at 580; 

Packingham v. North Carolina, 137 S. Ct. 1730, 1736 (2017); Brown v. Ent. Merchants 

Ass’n, 564 U.S. 786, 799 (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, 961 F.3d at 690; Fusaro, 930 F.3d at 263–64; Kolbe v. Hogan, 849 

F.3d 114, 148 n.19 (4th Cir. 2017); Liverman v. City of Petersburg, 844 F.3d 400, 407–09 

(4th Cir. 2016); Legend Night Club v. Miller, 637 F.3d 291, 299–300 (4th Cir. 2011). And 

still others. See Bruni v. Pittsburgh, 824 F.3d 353, 363 (3d Cir. 2016); Doe v. City of 

Albuquerque, 667 F.3d 1111, 1127 (10th Cir. 2012); Ezell v. City of Chic., 651 F.3d 684, 

698–99 (7th Cir. 2011); Rothe Dev. Corp. v. Dep’t of Def., 413 F.3d 1327, 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 

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 32 of 60
33

any decision of th[e] Court, including Salerno itself.” City of Chic. v. Morales, 527 U.S. 

41, 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., 422 U.S. 922, 931 (1975).

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

v. Wilson, 405 U.S. 518, 520 (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, 576 U.S. at 429 (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, 558 U.S. at 933 (Stevens, 

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

Republican Party, 552 U.S. 442, 450 (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, 413 U.S. 601, 611 (1973); see 

Connection Distrib. Co. v. Holder, 557 F.3d 321, 335 (6th Cir. 2009) (finding a facial 

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 33 of 60
34

challenge appropriate where “the constitutional problems cannot meaningfully be 

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

Standing, 113 Harv. L. Rev. 1321, 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, 105 Colum. L. Rev. 873, 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. 461 U.S. 

171 (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. Id. at 175, 182. 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 id. at 183; see also Marsh v. 

Alabama, 326 U.S. 501, 509 (1946) (striking down a state trespass law only “[i]nsofar as 

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

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 34 of 60
35

the streets of a company town); Time, Inc. v. Hill, 385 U.S. 374, 388, 397 (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., 472 

U.S. 491, 504 (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, 558 U.S. at 375 (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., 557 F.3d at 342 

(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; 

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 35 of 60
36

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, 472 S.E.2d 350, 354

(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, 567 U.S. 709, 719, 723 (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”).

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 36 of 60
37

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.” 862 F.3d at 358. 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.’ ” Id. at 359 (quoting Snyder v. Phelps, 562 U.S. 443, 452 (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.” Id. at 359–60. 

The Tenth Circuit took a similarly careful approach in W. Watersheds Project, 869 

F.3d at 1197. It held recordings of animals and habitat conditions protected speechcreation 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.” 

Id. 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, 564 U.S. 721, 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 

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 37 of 60
38

disseminate the resulting recording.” Alvarez, 679 F.3d at 595.9

 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, 576 U.S. at 418 

(citing Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (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, 482 U.S. 451, 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.” 878 F.3d 1184, 1203 (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.” 862 F.3d at 359. 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.” 878 F.3d at 1204 (quoting Idaho Code § 18–

7042(1)(d)).

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 38 of 60
39

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., N.C. Gen. Stat. § 66-154 (setting out trade-secrets 

protections); Hartman v. W.H. Odell & Assocs., Inc., 450 S.E.2d 912, 916 (N.C. Ct. App. 

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

McEneny, 476 S.E.2d 374, 376–77 (N.C. Ct. App. 1996) (acknowledging validity of nondisclosure 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, 2016 WL 11003637 (M.D.N.C. Sep. 26, 2016); Budler v. MacGregor, No. 

18 CVS 1153, 2018 WL 9539078 (N.C. Super. Ct. Feb. 16, 2018); Harris v. Peters, No. 

18 CVS 1646, 2018 WL 9903428 (N.C. Super. Ct. Feb. 27, 2018). So, six years in, any 

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 39 of 60
40

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, 546 U.S. 320, 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

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 40 of 60
41

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, 472 U.S. at 507; State v. Fredell, 195 S.E.2d 300, 

303 (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, 559 U.S. at 473 

(quoting Wash. State Grange, 552 U.S. at 449, n.6). 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.

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 41 of 60
42

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 16 U.S.C. § 1533(b)(3)(A); 40 C.F.R. § 

1506.6(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, 29 U.S.C. § 660(c); the Fair Labor Standards Act, id.

§ 218c; the Federal Railroad Safety Act, 49 U.S.C. § 20109(b); and North Carolina’s Burt’s 

Law, which prohibits abuse or harm to mentally ill persons, N.C. Gen. Stat. Ann. § 122C66. 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.

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 42 of 60
43

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

“chilling” of constitutionally valuable expression. Massachusetts v. Oakes, 491 U.S. 576, 

584 (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. Id. at 612.

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 

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 43 of 60
44

“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, 421 U.S. 809, 829 (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, 472 U.S. at 504. Instead, 

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

left intact.” Id. 

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, 458 

U.S. at 768 (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, 83 Harv. L. Rev. 844, 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-bycase 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 

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 44 of 60
45

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, 558 U.S. at 333 (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, 559 U.S. at 473 (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, 539 U.S. at 122 (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 

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 45 of 60
46

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

overbreadth. Hicks, 539 U.S. at 122 (2003); see Broadrick, 413 U.S. at 615 (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, 371 U.S. at 415 (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.

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 46 of 60
47

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.

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 47 of 60
48

(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 N.C. Gen. Stat. § 126-84 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 

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 48 of 60
49

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, 520 U.S. 43, 79 (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, 533 U.S. 289, 300 (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 

N.C. Gen. Stat. § 95-241(a).

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 49 of 60
50

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. 194 F.3d 505, 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. 

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 50 of 60
51

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., 501 

U.S. 663, 669 (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, 512 U.S. 622 (1994), and Barnes v. Glen Theatre Inc., 501 U.S. 560 (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, 

485 U.S. 46 (1988). Food Lion, 194 F.3d at 522. 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.” Id. 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).

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 51 of 60
52

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, 472 S.E.2d 350, 352, 355 (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., 618 S.E.2d 768, 772 

(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.’” 194 F.3d at 518 (quoting Desnick v. Am. Broad. 

Co., 44 F.3d 1345, 1353 (7th Cir. 1995)); see also id. (describing “the interest underlying 

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 52 of 60
53

the tort of trespass” as “the ownership and peaceable possession of land” (citing, inter alia, 

Matthews v. Forrest, 69 S.E.2d 553, 555 (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, 194 F.3d at 521 (“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, 194 F.3d at 522. 

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 id. at 521–522; see also, e.g., Planned 

Parenthood Fed’n of Am., Inc. v. Newman, 51 F.4th 1125, 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 

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 53 of 60
54

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, 548 S.E.2d 704, 709 (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, 408 U.S. 665, 681 (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, 878 F.3d 1184, 1203 (9th Cir. 2018). See Maj. Op. at 38 n.9. Other circuits to

consider restrictions on recording have extended First Amendment protection to recording 

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 54 of 60
55

matters of public interest in public spaces because of its connection with speech of public 

concern. See, e.g., Glik v. Cunniffe, 655 F.3d 78, 83 (1st Cir. 2011); Fields v. City of 

Philadelphia, 862 F.3d 353, 359 (3d Cir. 2017); Turner v. Lieutenant Driver, 848 F.3d 678, 

688–690 (5th Cir. 2017); ACLU of Ill. v. Alvarez, 679 F.3d 583, 595 & n.4, 600 (7th Cir. 

2012); W. Watersheds Project v. Michael, 869 F.3d 1189, 1195–1196 (10th Cir. 2017); 

Smith v. City of Cumming, 212 F.3d 1332, 1333 (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 ---, 2023 WL 1787881, 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, 381 U.S. 1, 17 (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, 501 U.S. at 669 (“The press may not 

with impunity break and enter an office or dwelling to gather news.”); Branzburg, 408 U.S. 

at 691 (“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 

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 55 of 60
56

rather than the bedroom), the First Amendment would have insulated her from liability. 

See Miller, 472 S.E.2d at 354; 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, 532 U.S. 514, 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 

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 56 of 60
57

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 nontrespassers, 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, 576 U.S. 155 (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, 142 S. Ct. 1464, 1474 (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 

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 57 of 60
58

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 

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 58 of 60
59

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, 141 S. Ct. 2373, 2387 (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, 539 U.S. 

113, 122 (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 

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 59 of 60
60

by comparison, a requirement we must apply “vigorously.” United States v. Williams, 553 

U.S. 285, 292 (2008).

USCA4 Appeal: 20-1777 Doc: 86 Filed: 02/23/2023 Pg: 60 of 60