RICHMOND, Va. (Legal Newsline) - The U.S. Court of Appeals for the Fourth Circuit is scheduled next week to hear arguments over a broad gag order issued by a judge overseeing a series of nuisance lawsuits against North Carolina hog farms that threatened to muzzle farmers and industry organizations opposed to the litigation.
The appeals court in Richmond, Va., will hear oral arguments Sept. 25 even though U.S. District Judge W. Earl Britt vacated his own gag order on Aug. 31. Plaintiff lawyers, who have won half a billion dollars in jury verdicts against hog farms so far, argued the judge’s action made the underlying question about the constitutionality of the gag order moot. Murphy-Brown LLC, a unit of international pork-processing giant Smithfield Foods, argued the controversy is still live since the judge could reinstate his order any time.
“The dispute is capable of repetition yet evading review because the district court could easily issue another gag order only to vacate it again,” Murphy-Brown said. “This Court should be leery of calculated efforts to yank out the jurisdictional rug so close to oral argument.”
Murphy-Brown’s mandamus petition has drawn support from a wide range of news organizations and business associations including the Society of Professional Journalists, the American Farm Bureau and the Reporters Committee for Freedom of the Press.
In amicus briefs submitted to the appeals court, those and other organizations say the gag order was unconstitutionally broad, since it prohibited not just parties to the cases but any potential witnesses – including farmers who view nuisance suits as a threat to their livelihood – from speaking about the litigation.
Hog farmers complain they were the subject of intense negative publicity including a “cutting-edge billboard campaign” in early 2015 by Robert F. Kennedy Jr.’s New York-based Waterkeeper Alliance, which informed potential jurors about the “environmental damage and human pain and suffering” caused by “industrial swine operations” it described as “foreign-owned corporations.”
Smithfield Foods is owned by Hong Kong-based WH Group, although local hog farmers may bear the brunt of the cost of litigation since many of them raise hogs under contract to processors like Smithfield Foods. Kennedy is a lawyer with Morgan & Morgan, a prominent personal injury law firm.
Farmers and industry groups this year successfully petitioned the North Carolina legislature to pass a law, over the veto of Democratic Gov. Roy Cooper, restricting nuisance lawsuits against farm operations that are otherwise in compliance with environmental regulations. Judge Britt imposed the gag order sua sponte, or on his own initiative, on June 27, the same day North Carolina lawmakers voted to override Gov. Cooper’s veto.
Farm groups nationwide are pressing for similar laws, as environmental groups like Waterkeeper and Earthjustice join forces with plaintiff lawyers to press nuisance lawsuits against what they call “factory farms.” In a sign of how powerful the movement has become, former Google Chairman Eric Schmidt’s personal charity has given more than $1.3 million in the past several years to groups that use litigation to oppose large farming operations.
The gag order prohibited not only lawyers and parties involved in the case from speaking, but “all potential witnesses,” an undefined term that First Amendment advocates said could include any hog farmer who could potentially be called to testify about the impact of nuisance lawsuits on the industry.
“If reporters are restricted from speaking with trial participants and anyone who may be called as a witness at trial in these cases, the press and the public will be deprived of important sources of information about them,” the Reporters Committee for Freedom of the Press said in an amicus brief supporting Murphy-Brown’s mandamus petition before the Fourth Circuit.
In another brief, the American Farm Bureau Federation said it planned a symposium on nuisance litigation at its annual convention in New Orleans in January, but could not invite North Carolina hog farmers to speak because of the gag order.
“Witnesses are chilled by the gag order and cannot participate in AFBF events, and because even asking them to appear might well be seen as illegally soliciting a violation of a court order,” the Farm Bureau said.
Murphy-Brown has lost three trials so far this year, including a $470 million verdict that came down on Aug. 3, a week after Judge Britt imposed the gag order. As with previous verdicts, the award will be reduced under North Carolina’s punitive damages cap to $94 million. Plaintiffs earlier won verdicts of $10 million and $25 million against Murphy-Brown.
Lawyers for both sides didn’t respond to requests for comment. In an Aug. 17 brief urging the Fourth Circuit to reject Murphy-Brown’s mandamus plea, lawyers with Wallace & Graham in Salisbury, N.C., said “the core elements” of the judge’s June 27 order were “well-founded and should remain in place.”
“There is real danger not just of prejudice and tainting of the jury pool, but also, intimidation and even violence,” the plaintiff lawyers said then.
After Judge Britt vacated his own order, those lawyers changed their tune, arguing the issue had become moot, and “there is no showing a future similar set of facts will arise or that a similar order will be entered.”
Murphy-Brown may have the law on its side in this case. While courts have on rare occasions ordered the parties in criminal cases to remain silent to guarantee the defendant a fair trial, there are only a handful of cases where judges have muzzled participants in civil trial, where the stakes and constitutional implications are much less significant.
Writing for the American Farm Bureau Federation, lawyers including UCLA Law School Professor Eugene Volokh, a well-known First Amendment expert, said the core constitutional right to petition the legislature was affected by Judge Britt’s sweeping order.
The North Carolina Farm Bureau Federation “played a critical role” in pushing for the law limiting nuisance lawsuits, and “continues to lobby state and local authorities to protect hog farmers from devastating nuisance verdicts,” they wrote in the amicus brief.
“There are no better witnesses to testify before a legislative body, and no better faces for a public advocacy campaign, than the farmers who are themselves targeted by the underlying nuisance suits,” they wrote. “Yet amici have been unable to get the targeted farmers or other potential witnesses to testify or make statements about these lawsuits.”
The fact a trial court has vacated an order doesn’t automatically strip an appeals court of jurisdiction, or the power to decide whether that order is constitutional.
In a 2017 decision, for example, the Fourth Circuit rejected an attempt by the Department of Homeland Security to moot an alien’s appeal of a removal order by cancelling it, saying the court knew of “no authority” giving DHS the power to strip it of jurisdiction over the appeal.