This Comment explores the history and purpose of ag-gag legislation as well as its constitutional shortcomings, particularly with regard to damages. Using North Carolina’s recent ag-gag efforts to silence whistleblowers as an effective case study, this Comment explains how free-speech protections, public policy, and causation principles all limit the monetary damages recoverable against undercover investigators. It begins in Part II with a history of undercover investigations and their role in confronting systemic exploitation within various industries. It then describes how these industries have responded to the unwanted attention by turning to the courts and legislatures for redress. It is in this section that ag-gag legislation is introduced and described in greater detail. Part III begins by examining common-law limitations on tort liability, particularly in cases concerning breach of employee duty of loyalty. It describes how these legal and practical limitations have driven ag-industry lobbyists to seek legislative favors to more effectively deter undercover investigations. The Comment then describes how their statutory solution (ag-gag laws) are effectively emasculated by First Amendment free-speech protections. Part III concludes with a brief look at another liability-limiting concept, known as “proximate causation,” which applies principles of policy and logic to shield investigators from monetary damages sustained by exposed industries. In Part IV, I call upon litigators and lawmakers to tackle the unconstitutional civil-damage provisions found in roughly half of the ag-gag statutes currently in effect, and caution other states against enactment of such provisions. I implore courts tasked with applying these laws to respect the constitutional protections and public-policy considerations limiting the amount of damages they may award. I then point out some practical reasons why a company that finds itself the target of an exposé should refrain from suing the undercover investigator who infiltrated them. Finally, I encourage activist groups to continue in their constitutionally protected efforts to expose abuse and wrongdoing in the animal agriculture industry.
Sarah Hanneken, Principles Limiting Recovery Against Undercover Investigators in Ag-Gag States: Law, Policy and Logic, 50 J. Marshall L. Rev. 649 (2017)