Whether a worker planted in a business to collect information for their true employer, and who does so in nonpublic areas of the business, is immunized by the First Amendment from an action for trespass and breach of loyalty created by a content-neutral statute of general applicability

QUESTION PRESENTED North Carolina’s Property Protection Act aims to protect businesses from trespass and disloyalty by employees whose loyalties lie elsewhere, often with activist groups that have planted them to collect information. The Act creates a cause of action for damages against an employee who “intentionally gains access to the nonpublic areas of [the employer’s] property” and engages there “in an act that exceeds the person’s authority to enter.” Those acts are defined as, without bona fide intent of employment, stealing the employer’s information or recording images or sounds, and using the gathered material to breach the duty of loyalty to the employer; or using an unattended device to record images or sounds. People for the Ethical Treatment of Animals and other animal rights groups challenged the Act as a violation of the First Amendment. The Fourth Circuit, over the dissent of Judge Rushing, enjoined North Carolina from applying the law to PETA’s spying activities, holding that a planted employee’s “recording in the non-public areas” of the employer’s property “as part of newsgathering constitutes protected speech.” The question presented is: Whether a worker planted in a business to collect information for their true employer, and who does so in nonpublic areas of the business, is immunized by the First Amendment from an action for trespass and breach of loyalty created by a content-neutral statute of general applicability.