On June 22, 2017, we blogged about the challenge to North Carolina’s “ag-gag” law. The statute provides for actual and punitive damages against a person or entity who engages in an undercover investigation into charges of animal cruelty.  People for the Ethical Treatment of Animals (PETA) and the Animal Legal Defense Fund (ALDF) challenged the statute on First Amendment grounds.  The District Court dismissed the lawsuit on the basis that plaintiffs lacked standing – i.e., they had not alleged any immediate concrete injury.

On June 5, 2018, the Fourth Circuit reversed.  The appellate court held that the complaint did adequately allege that the existence of the statute had deterred PETA and ALDF from pursuing undercover investigations at the University of North Carolina at Chapel Hill.  In First Amendment cases, courts have relaxed standing requirements and the chilling effect on speech is sufficient injury to allow the lawsuit to proceed.

The Fourth Circuit declined to consider the State’s alternative argument that the chilling effect was not fairly traceable to the only two defendants in the lawsuit – the chancellor of the University and the Attorney General.  The District Court can visit that issue on remand and the plaintiffs may wish to add additional defendants.