                                    UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                      No. 17-1669


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 - Appellants,

             v.

ATTORNEY GENERAL JOSHUA STEIN, Attorney General of the State of North
Carolina; CAROL L. FOLT, in her official capacity as Chancellor of the University
of North Carolina-Chapel Hill,

                    Defendants - Appellees.

______________________

ALAN CHEN; ERWIN CHEMERINSKY; ERIC FINK; JUSTIN PIDOT; JOHN
F. PREIS; ALEXANDER A. REINERT; THE REPORTERS COMMITTEE FOR
FREEDOM OF THE PRESS; AMERICAN SOCIETY OF NEWS EDITORS;
ASSOCIATED PRESS MEDIA EDITORS; ASSOCIATION OF ALTERNATIVE
NEWSMEDIA; ASSOCIATION OF AMERICAN PUBLISHERS, INC.;
BRECHNER CENTER FOR FREEDOM OF INFORMATION; THE
CHARLOTTE OBSERVER; FIRST AMENDMENT COALITION; FREEDOM
OF THE PRESS FOUNDATION; GATEHOUSE MEDIA, LLC; INTER
AMERICAN PRESS ASSOCIATION; INTERNATIONAL DOCUMENTARY
ASSOCIATION; INVESTIGATIVE REPORTING PROGRAM AT UC
BERKELEY; INVESTIGATIVE REPORTING WORKSHOP AT AMERICAN
UNIVERSITY; MEREDITH CORPORATION, d/b/a WHNS-TV (Greenville, SC);
MPA- THE ASSOCIATION OF MAGAZINE MEDIA; NATIONAL PRESS
PHOTOGRAPHERS ASSOCIATION; THE NEWS & OBSERVER; PEN
AMERICA; RADIO TELEVISION DIGITAL NEWS ASSOCIATION;
REPORTERS WITHOUT BORDERS; SINCLAIR BROADCAST GROUP, INC.;
SOCIETY OF PROFESSIONAL JOURNALISTS; STUDENT PRESS LAW
CENTER; TULLY CENTER FOR FREE SPEECH; WTVD TELEVISION, LLC,

                    Amici Supporting Appellants.



Appeal 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: January 24, 2018                                           Decided: June 5, 2018


Before TRAXLER and FLOYD, Circuit Judges, and SHEDD, Senior Circuit Judge.


Reversed and remanded by unpublished per curiam opinion.


ARGUED: David Samuel Muraskin, PUBLIC JUSTICE, PC, Washington, D.C., for
Appellants. Sripriya Narasimhan, NORTH CAROLINA DEPARTMENT OF JUSTICE,
Raleigh, North Carolina, for Appellees. ON BRIEF: Leslie A. Brueckner, PUBLIC
JUSTICE, P.C., Oakland, California; Daniel K. Bryson, Jeremy Williams, WHITFIELD
BRYSON & MASON LP, Raleigh, North Carolina; Matthew Liebman, ANIMAL
LEGAL DEFENSE FUND, Cotati, California, for Appellants. Josh Stein, Attorney
General, Matthew W. Sawchak, Solicitor General, Kimberly D. Potter, Special Deputy
Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellees. Alexander A. Reinert, BENJAMIN A. CARDOZO SCHOOL
OF LAW, New York, New York; Burton Craige, Paul E. Smith, PATTERSON
HARKAVY LLP, Chapel Hill, North Carolina, for Amici Alan Chen, Erwin
Chemerinsky, Eric Fink, Justin Pidot, John F. Preis, and Alexander A. Reinert. Bruce D.
Brown, Caitlin Vogus, THE REPORTERS COMMITTEE FOR FREEDOM OF THE
PRESS, Washington, D.C., for Amici The Reporters Committee for Freedom of the
Press, American Society of News Editors, Associated Press Media Editors, Association
of Alternative Newsmedia, Association of American Publishers Incorporated, Brechner
Center for Freedom of Information, The Charlotte Observer, First Amendment Coalition,
Freedom of the Press Foundation, Gatehouse Media, LLC, Inter American Press
Association, International Documentary Association, Investigative Reporting Program at
UC Berkeley, Investigative Reporting Workshop at American University, Meredith
Corporation, MPA - The Association of Magazine Media, National Press Photographers
Association, The News & Observer, Pen America, Radio Television Digital News
Association, Reporters Without Borders, Sinclair Broadcasting Group, Incorporated,

                                            2
Society of Professional Journalists, Student Press Law Center, Tully Center for Free
Speech, and WTVD Television, LLC. Kevin M. Goldberg, FLETCHER, HEALD &
HILDRETH, PLC, Arlington, Virginia, for Amici American Society of News Editors and
Association of Alternative Newsmedia. Jonathan Bloom, WEIL, GOTSHAL &
MANGES LLP, New York, New York, for Amicus The Association of American
Publishers, Inc. Frank D. LoMonte, Director, THE BRECHNER CENTER FOR
FREEDOM OF INFORMATION, Gainesville, Florida, for Amicus The Brechner Center
for Freedom of Information. David Snyder, FIRST AMENDMENT COALITION, San
Rafael, California, for Amicus First Amendment Coalition.          Marcia Hofmann,
FREEDOM OF THE PRESS FOUNDATION, San Francisco, California, for Amicus
Freedom of the Press Foundation. Polly Grunfeld Sack, SVP, General Counsel and
Secretary, GATEHOUSE MEDIA, LLC, Pittsford, New York, for Amicus GateHouse
Media, LLC. Joshua N. Pila, MEREDITH CORPORATION, Atlanta, Georgia, for
Amicus Meredith Corporation. James Cregan, Executive Vice President, MPA - THE
ASSOCIATION OF MAGAZINE MEDIA, Washington, D.C., for Amicus MPA - The
Association of Magazine Media. Mickey H. Osterreicher, Buffalo, New York, for
Amicus National Press Photographers Association. Juan Cornejo, THE MCCLATCHY
COMPANY, Sacramento, California, for Amici The Charlotte Observer and The News &
Observer. Katherine Glenn Bass, PEN AMERICA, New York, New York, for Amicus
PEN America. Kathleen A. Kirby, WILEY REIN LLP, Washington, D.C., for Amicus
Radio Television Digital News Association.           Barry Faber, Executive Vice
President/General Counsel, SINCLAIR BROADCAST GROUP, INC., Hunt Valley,
Maryland, for Amicus Sinclair Broadcast Group, Inc. Bruce W. Sanford, Mark I. Bailen,
BAKER & HOSTETLER LLP, Washington, D.C., for Amicus Society of Professional
Journalists.


Unpublished opinions are not binding precedent in this circuit.




                                            3
PER CURIAM:

       Plaintiffs-Appellants People for the Ethical Treatment of Animals, Inc. (“PETA”),

Animal Legal Defense Fund (“ALDF”), and six additional public-interest organizations

brought this action against Carol Folt, in her official capacity as Chancellor of the

University of North Carolina-Chapel Hill (“UNC-Chapel Hill”), and Josh Stein, in his

official capacity as Attorney General of North Carolina, asserting a pre-enforcement

challenge to the North Carolina Property Protection Act. See N.C. Gen. Stat. § 99A-2

(2016). The district court dismissed Plaintiffs’ amended complaint under Federal Rule of

Civil Procedure 12(b)(1), holding that Plaintiffs had failed to allege an injury-in-fact

sufficient to confer standing for purposes of Article III of the United States Constitution.

We hold that the district court erred in dismissing Plaintiffs’ claims at this stage of the

proceedings. Accordingly, we reverse and remand for further proceedings.

                                             I.

       The North Carolina Property Protection Act (hereinafter the “Act”) provides a

private right of action against any person who “exceed[s] the scope of authorized access”

to the property of an owner or operator.

       Any 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. For the purposes of this section, “nonpublic areas”
       shall mean those areas not accessible to or not intended to be accessed by
       the general public.

N.C. Gen. Stat. § 99A-2(a). “Act[s] that exceed[] a person’s authority to enter the

nonpublic areas of another’s premises” include the following scenarios:


                                             4
       (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.

       (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
       ....

       (5) An act that substantially interferes with the ownership or possession of
       real property.

N.C. Gen. Stat. § 99A-2(b) (emphasis added). 1 The statute provides for equitable relief,

as well as the recovery of compensatory damages, costs and attorneys’ fees, and

exemplary damages in the amount of $5,000 for each day that the person has acted in

violation of the Act. See N.C. Gen. Stat. § 99A-2(d)(1)-(4). In addition, “[a]ny person

who intentionally directs, assists, compensates, or induces another person to violate [the

Act] shall be jointly liable.” N.C. Gen. Stat. § 99A-2(c).




       1
              “Conspiring in organized retail theft, as defined in Article 16A of Chapter
14 of the General Statutes” is also included as a prohibited act, N.C. Gen. Stat. § 99A-
2(b)(4) (2016), but Plaintiffs do not contend that this would be an unconstitutional
provision standing alone.


                                             5
       Two of the Plaintiffs in this action—PETA and ALDF—are animal protection

charities that engage in undercover investigations of public and private facilities for the

purpose of uncovering acts of animal cruelty. “PETA is dedicated to protecting animals

from abuse, neglect, and cruelty, and undertakes these efforts through public education,

undercover investigations, research, animal rescue, legislation, special events, celebrity

involvement, protest campaigns, and lawsuits to enforce laws enacted to protect animals.”

J.A. 16. ALDF “uses education, public outreach, investigations, legislation, and litigation

to protect the lives and advance the interests of animals, including those animals who are

raised for food, used in biomedical research, exhibited to the public, or bred as pets.”

J.A. 23. The remaining plaintiffs—Farm Sanctuary, Center for Food Safety, Food &

Water Watch, Government Accountability Project, Farm Forward, and American Society

for the Prevention of Cruelty to Animals—rely upon and use information from

whistleblowers and undercover investigations conducted by organizations such as PETA

and ALDF to accomplish their distinct missions. 2

       Shortly after the Act became effective, Plaintiffs brought this action, alleging that

the Act interferes with their plans to conduct undercover investigations of government

facilities in North Carolina for the purpose of gathering evidence of unethical and illegal

animal practices and to disseminate this information to the public, in violation of the First

and Fourteenth Amendments to the United States Constitution and various provisions of

       2
              Although Plaintiff Farm Sanctuary alleges that it has also conducted
undercover investigations in the past, it does not allege any plans to conduct future
investigations in North Carolina.


                                             6
the North Carolina Constitution.        Plaintiffs sought an order declaring the Act

unconstitutional and enjoining Defendants from enforcing the Act. Defendants moved to

dismiss Plaintiffs’ amended complaint under Rule 12(b)(1), asserting that Plaintiffs’

claims of injury were too speculative to confer standing. The district court agreed,

granted the motion, and dismissed the amended complaint. 3

                                            II.

       When reviewing the dismissal of a complaint for lack of subject-matter

jurisdiction under Rule 12(b)(1), “we must assume all well-pled facts to be true and draw

all reasonable inferences in favor of the plaintiff.” Cooksey v. Futrell, 721 F.3d 226, 234

(4th Cir. 2013) (internal quotation marks omitted). We review the district court’s grant of

the motion de novo. See id.

       We begin with the Plaintiffs’ allegations pertaining to PETA and ALDF. Both

PETA and ALDF have a long history of conducting undercover investigations, including

in North Carolina, to accomplish their missions. They recruit qualified persons to secure

employment with employers that they have reason to believe are engaged in acts of

animal cruelty. Once these persons secure employment and gain access to the employer’s

premises, they act as undercover investigators tasked with collecting incriminating

information.




       3
            Defendants also moved for dismissal on the basis of Eleventh Amendment
immunity and on the merits, which the district court did not reach.


                                            7
       Both organizations have had success with these investigative techniques.          Of

particular relevance, PETA uncovered illegal and unethical abuse of animals at UNC-

Chapel Hill from 2001 to 2003. Two PETA investigators secured at-will jobs in the

UNC-Chapel Hill animal testing laboratories. “In the non-public areas of the facilities,

PETA’s investigators gathered information, including making recordings, showing that

the workers disregarded animal care protocols and government orders, for instance,

cutting off the heads of rat pups while the pups were still conscious and in violation of

protocol.” J.A. 19. When “PETA’s investigators tried to report these violations to

university personnel, . . . other employees in the lab discarded and hid evidence, and a

supervisor instructed PETA’s investigators not to tell him about the violations.” J.A. 19.

PETA later “publicized its findings and filed a report with the National Institutes of

Health, which confirmed PETA’s allegations.” J.A. 19.

       PETA alleges that, “[o]n information and belief, the unethical and illegal treatment

of animals continues at these UNC-Chapel Hill laboratories.” J.A. 19. PETA alleges

that, “[a]s part of its mission, [it] would conduct another undercover investigation of

these facilities,” but it “has chosen not to undertake this investigation” because it “fears

liability under the [Act].” J.A. 20.

       ALDF alleges that its agents have also “conducted undercover investigations at

animal facilities around the country, including at least a dozen in North Carolina.” J.A.

23. In addition to planting ALDF employees “with an organization that ALDF believes

is engaged in the unethical or illegal treatment of animals” to “collect[] information

and/or make[] recordings regarding the organization’s conduct,” the “ALDF investigators

                                             8
may also be instructed to leave recording devices unattended to capture images and sound

over a longer duration, such as to document the severity of repetitive pathological

stereotypies in captive wild animals, or the length of time for which a sick or injured

animal goes without veterinary care,” J.A. 23-24.          ALDF alleges that it “has an

investigative team” in place that is capable of conducting these investigations and that “a

comprehensive list of animal facilities[,] including farms, research facilities, puppy mills,

and animal hoarders in North Carolina” have been targeted for investigation. J.A. 24.

Like PETA, ALDF “wishes to continue to conduct such investigations in North Carolina,

but it has been deterred from doing so for fear of being sued for damages under the

[Act].” J.A. 23.

       Finally, Plaintiffs PETA and ALDF allege that their fear of liability under the Act

is reasonable. According to Plaintiffs, the primary purpose of the Act, as revealed by its

text and the legislative history, is to punish private special-interest organizations like

PETA and ALDF, who plant investigators in public and private facilities to collect and

share information with the goal of informing the public about wrongdoing. In short, they

allege the Act was targeted at them and, therefore, they have every reason to believe that

the Chancellor at UNC-Chapel Hill and the Attorney General of North Carolina will

pursue action against them if they carry out their plans at UNC-Chapel Hill and the other

targeted state-owned facilities.

       With regard to the remaining Plaintiffs, they allege that the Act interferes with

their First Amendment right to receive information from organizations such as PETA and



                                             9
ALDF that would further their missions, and to disseminate the information to their

members, the public, and the government.

                                             III.

       Under Article III of the United States Constitution, the jurisdiction of federal

courts is limited to deciding “Cases” or “Controversies.” U.S. Const. art. III, § 2, cl. 1.

“‘The doctrine of standing gives meaning to these constitutional limits by identify[ing]

those disputes which are appropriately resolved through the judicial process.’”

Wikimedia Found. v. Nat’l Sec. Agency, 857 F.3d 193, 207 (4th Cir. 2017) (quoting

Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014)). To satisfy the

constitutional standing requirement, a plaintiff must demonstrate (1) “an injury in fact”;

(2) “a causal connection between the injury and the conduct complained of,” such that the

injury is “fairly traceable” to the defendant’s actions; and (3) a likelihood “that the injury

will be redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555,

560 (1992) (alteration and internal quotation marks omitted).

       This appeal primarily concerns the first element of the standing doctrine—the

injury-in-fact requirement. We must determine whether the Plaintiffs sufficiently alleged

that they have “suffered ‘an invasion of a legally protected interest’ that is ‘concrete and

particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Spokeo, Inc. v.

Robins, 136 S. Ct. 1540, 1548 (2016) (quoting Lujan, 504 U.S. at 560); see also

Wikimedia, 857 F.3d at 207. “A concrete injury must be de facto; that is, it must actually

exist.” Spokeo, 136 S. Ct. at 1548 (internal quotation marks omitted). “For an injury to

be particularized, it must affect the plaintiff in a personal and individual way.” Id.

                                             10
(internal quotation marks omitted). “The purpose of the imminence requirement ‘is to

ensure that the alleged injury is not too speculative for Article III purposes.’” Wikimedia,

857 F.3d at 208 (quoting Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013)).

Although “threatened rather than actual injury can satisfy Article III standing

requirements, not all threatened injuries constitute an injury in fact.” Beck v. McDonald,

848 F.3d 262, 271 (4th Cir. 2017) (citation and internal quotation marks omitted).

“Allegations of possible future injury are not sufficient” to convey standing. Clapper,

133 S. Ct. at 1147 (internal quotation marks and alteration omitted). However, “[a]n

allegation of future injury may suffice if the threatened injury is ‘certainly impending,’ or

there is a ‘substantial risk’ that the harm will occur.” Susan B. Anthony, 134 S. Ct. at

2341 (quoting Clapper, 133 S. Ct. at 1147, 1150, n.5) (internal quotation marks omitted).

       In First Amendment cases, however, the “standing requirements are somewhat

relaxed.” Cooksey, 721 F.3d at 235.

       Even where a First Amendment challenge could be brought by one actually
       engaged in protected activity, there is a possibility that, rather than risk
       punishment for his conduct in challenging the statute, he will refrain from
       engaging further in the protected activity. Society as a whole then would
       be the loser. Thus, when there is a danger of chilling free speech, the
       concern that constitutional adjudication be avoided whenever possible may
       be outweighed by society’s interest in having the statute challenged.

Id. (quoting Sec’y of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 956 (1984)).

Thus, we have held that, “under the First Amendment standing framework,” plaintiffs

“sufficiently satisf[y] the . . . injury-in-fact requirement by showing that [the challenged

statute] had an objectively reasonable chilling effect” on the exercise of their rights.

Cooksey, 721 F.3d at 229 (emphasis added); see also Benham v. City of Charlotte, 635

                                             11
F.3d 129, 135 (4th Cir. 2011) (noting that a “cognizable injury under the First

Amendment is self-censorship, which occurs when a claimant is chilled from exercising

her right to free expression.” (internal quotation marks omitted)).

       To decide the objective reasonableness of the claimed chilling effect from the Act,

the court evaluates whether there is a credible threat of enforcement against the plaintiff.

As we have noted,

       [w]hen a plaintiff faces a credible threat of prosecution under a criminal
       statute he has standing to mount a pre-enforcement challenge to that statute.
       A non-moribund statute that facially restricts expressive activity by the
       class to which the plaintiff belongs presents such a credible threat, and a
       case or controversy thus exists in the absence of compelling evidence to the
       contrary. This presumption is particularly appropriate when the presence of
       a statute tends to chill the exercise of First Amendment rights.

N.C. Right to Life, Inc. v. Bartlett, 168 F.3d 705, 710 (4th Cir. 1999) (citation, alteration

and internal quotation marks omitted). “Government action will be sufficiently chilling

when it is likely to deter a person of ordinary firmness from the exercise of First

Amendment rights.” Cooksey, 721 F.3d at 236 (internal quotation marks omitted).

                                            IV.
                                             A.
       Relying primarily upon the Supreme Court’s decision in Clapper, the district court

held that because the Act imposes only civil and no criminal penalties, Plaintiffs would

have to show that their alleged injury-in-fact was “certainly impending” or that there was

a “substantial risk” that the harm will occur. The district court then concluded that

Plaintiffs’ allegations failed to meet this standard because Plaintiffs might not uncover

evidence of animal abuse; and, even if they did, Defendants might choose not to bring a


                                             12
lawsuit under the Act. Plaintiffs argue that the district court erred in dismissing their

amended complaint under Clapper because their allegations of injury pertain to an

objectively reasonable chill on the exercise of their rights and self-censorship—an actual

injury-in-fact for purposes of standing to assert a First Amendment challenge to the

Act—and not to any imminent or threatened lawsuit.

       We agree that Plaintiffs’ amended complaint sufficiently alleges an injury-in-fact

for purposes of their First Amendment challenge. Plaintiffs “have alleged an intention to

engage in a course of conduct arguably affected with a constitutional interest,” a credible

threat that the Act will be enforced against them if they proceed with their plans, and that

they have refrained from proceeding for fear of being subjected to the severe civil

remedies provided for in the Act.       Susan B. Anthony, 134 S. Ct. at 2343 (internal

quotation marks omitted). We cannot say that the claimed “chilling” effect of the Act is

objectively unreasonable or that Plaintiffs’ claims of injury are too speculative to satisfy

the First Amendment standing framework at the Rule 12(b)(1) stage.

       First, both PETA and ALDF have in the past conducted actual undercover

investigations in public and private facilities for the purpose of uncovering unethical or

illegal treatment of animals and disseminating such information to the public. They have

plausibly alleged that they wish to continue such investigations in furtherance of their

missions and that they are fully prepared to go forward but for their fear of liability under

the Act. PETA, in particular, has successfully conducted such an investigation at UNC-

Chapel Hill, during which it faced opposition from university personnel, and that it is

currently in possession of information that illegal and unethical animal practices continue

                                             13
to take place at UNC-Chapel Hill. ALDF has also “conducted undercover investigations

at animal facilities around the country, including at least a dozen in North Carolina,” J.A.

23, and “a comprehensive list of animal facilities[,] including farms, research facilities,

puppy mills, and animal hoarders in North Carolina” that have already been targeted for

investigation. J.A. 24. Cf. Hill v. City of Houston, 764 F.2d 1156, 1161 (5th Cir. 1985)

(holding that plaintiff “face[d] a ‘credible threat’ of future criminal prosecutions under

[challenged] ordinance that [was] more that a mere speculative and remote possibility,”

as plaintiff had previously violated the ordinance and “repeatedly and steadfastly asserted

that he intend[ed] to continue” to violate it).

       Second, the Act appears by its terms to prohibit Plaintiffs’ planned activities and

to subject them to civil liability, including severe exemplary damages. It prohibits an

employee from entering the nonpublic areas of an employer’s premises and, once there,

“captur[ing] or remov[ing] the employer’s data, paper, records, or any other documents,”

“record[ing] images or sound occurring within an employer’s premises,” or “placing on

the employer’s premises an unattended camera or electronic surveillance device and

using that device to record images or data.” N.C. Gen. Stat. § 99A-2(b)(1)-(3). These are

precisely the types of activities that Plaintiffs engaged in before and intend to engage in

again during their future investigations. Moreover, Defendants have not disputed that a

civil action could be brought under the Act by the appropriate officials at UNC-Chapel

Hill if PETA undertakes its intended investigation, or by the other targeted governmental

agencies, via the Attorney General, if PETA and ALDF proceed with their plans.



                                              14
       Finally, Plaintiffs have alleged a reasonable and well-founded fear that the Act

will be enforced against them if they carry out their plans. According to Plaintiffs’

allegations, the Act was specifically targeted at public-interest organizations to stop them

from surreptitiously gaining access to an employer’s premises to uncover illegal and

unethical conduct. Plaintiffs have also plausibly alleged that Defendants are the officials

who are empowered to initiate or file suits under the Act if Plaintiffs carry out their

investigations, and neither the UNC Chancellor nor the Attorney General have

“disavowed enforcement” if Plaintiffs proceed with their plans. Susan B. Anthony, 134 S.

Ct. at 2345. In sum, at this stage of the proceedings, there is no reason to assume that the

Defendants intend to refrain or would refrain from filing suit against Plaintiffs on behalf

of UNC-Chapel Hill or the other targeted state agencies if Plaintiffs violate the Act. See

Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 393 (1988) (holding that “the pre-

enforcement nature of th[e] suit” was not “troubl[ing]” because “[t]he State ha[d] not

suggested that the newly enacted law [would] not be enforced, and [there was] no reason

to assume otherwise”); Mobil Oil Corp. v. Att’y Gen. of Va., 940 F.2d 73, 76 (4th Cir.

1991) (noting that there was “no reason to assume that the Virginia legislature enacted

[the challenged] statute without intending it to be enforced”).

       Because Plaintiffs have sufficiently alleged an actual injury, we need not visit the

district court’s determination of whether Clapper would strip Plaintiffs of their standing

to assert a claim of a threatened or imminent injury in the form of a civil lawsuit. Again,

Plaintiffs’ alleged injury is not just the imminent threat of a civil lawsuit, which would

only occur if they go forward with their plans to investigate in the nonpublic areas of a

                                             15
state employer’s premises and Defendants choose to file suit against them. Rather,

Plaintiffs alleged injury for standing purposes is that they have refrained from carrying

out their planned investigations based on their reasonable and well-founded fear that they

will be subjected to significant exemplary damages under the Act if they move forward at

all. See Am. Booksellers Ass’n, 484 U.S. at 393 (noting that where “the alleged danger of

[a] statute is, in large measure, one of self-censorship,” it is “a harm that can be realized

even without an actual prosecution”); Wikimedia, 857 F.3d at 211 (noting that “Clapper’s

discussion of speculative injury” was “based . . . on prospective or threatened injury and

actions taken in response thereto,” unlike “‘self-censorship, which occurs when a

claimant is chilled from exercising his right to free expression’”) (quoting Cooksey, 721

F.3d at 235)). 4

       For these reasons, we hold that Plaintiffs have sufficiently alleged, at least at this

stage of the litigation, an injury-in-fact sufficient to meet the first prong of the First

Amendment standing framework; they have alleged “an actual and well-founded fear that

the [Act] will be enforced, and ha[ve] in fact self-censored [themselves] by complying



       4
                To the extent the district court relied upon the fact that the Act only
provides for civil as opposed to criminal sanctions, the Defendants do not advance this
distinction as a basis for upholding the decision. As noted above, the Act provides for
“stiff civil remed[ies],” including exemplary damages in the amount of $5,000 per day
that a person violates the Act, plus attorneys’ fees and costs, which we have no trouble
concluding would be an impediment to Plaintiffs’ plans to move forward. Mobil Oil
Corp. v. Att’y Gen. of Va., 940 F.2d 73, 75 (4th Cir. 1991) (finding standing in pre-
enforcement challenge to the Virginia Petroleum Products Franchise Act which created a
“stiff civil remedy”: $2,500 in liquidated damages, actual damages, and attorneys’ fees).


                                             16
with the [Act], incurring harm all the while.”      Mobil Oil, 940 F.2d at 76 (internal

quotation marks omitted). 5

                                            B.

       Defendants urge us to affirm the district court’s dismissal at the Rule 12(b)(1)

stage on the alternative basis that the alleged injury-in-fact is not “fairly traceable” to

Chancellor Folt or Attorney General Stein. Lujan, 504 U.S. at 560 (providing that “there

must be a causal connection between the injury and the conduct complained of—the

injury has to be fairly traceable” to the defendants) (alteration and internal quotation

marks omitted).

       First, Defendants argue that only the Board of Governors of UNC has the authority

to file suit against the Plaintiffs. Although the Board of Governors has delegated a

portion of the authority to the Chancellor—lawsuits with less than $25,000 at stake—

Defendants argue that any lawsuit seeking to enforce the Act against Plaintiffs would not

qualify as a minor lawsuit because of the $5,000-per-day exemplary damages provision

and, therefore, that the Chancellor could do nothing without prior approval from the

Board. Second, Defendants argue that the Act only creates a private right of action for

“the owner or operator of the premises,” N.C. Gen. Stat. 99A-2(a), and Attorney General

Stein would not likely be the owner or operator of any targeted facility. Instead, he

       5
              We, of course, express no opinion on the balance of Defendants’ motion to
dismiss or on the merits of the underlying controversy. “‘[W]hether the statute in fact
constitutes an abridgement of the plaintiff’s freedom of speech is . . . irrelevant to the
standing analysis.’” Cooksey v. Futrell, 721 F.3d 226, 239 (4th Cir. 2013) (quoting
Meese v. Keene, 481 U.S. 465, 473 (1987)).


                                            17
would only be the attorney for any owner or operator of the facility. See N.C. Gen. Stat.

§ 114-2(2) (providing that one of the statutorily prescribed duties of the Attorney General

is to “represent all State departments, agencies, institutions, commissions, bureaus or

other organized activities of the State which receive support in whole or in part from the

State”).

       We decline to affirm the district court’s decision on this basis. It appears that

Chancellor Folt would be the state official tasked with either initiating or requesting

approval for a lawsuit under the Act if PETA carried out its planned investigation of

UNC-Chapel Hill. And Attorney General Stein would, at a minimum, be the state

official charged with representing any targeted state agency that chose to sue under the

Act. Thus, while we can envision a number of additional parties that could have brought

suit against Plaintiffs if they had carried out their investigative plans prior to bringing this

pre-enforcement action, an order preventing these Defendants from exercising their

powers to initiate or bring a lawsuit under the Act would seem to be sufficient to quell

Plaintiffs’ fear of liability. Moreover, in the proceedings below, the district court granted

Defendants’ motion to dismiss the amended complaint solely on the basis of the injury-

in-fact element of standing. It did not need to reach the issue of whether the actual

injury-in-fact is fairly traceable to these Defendants, or whether the Plaintiffs need to and

should be allowed to amend their complaint to add additional defendants to maintain their

pre-enforcement challenge. We leave that determination to the district court on remand

as the case progresses.

                                              V.

                                              18
      For the foregoing reasons, we reverse the judgment of the district court and

remand for further proceedings consistent with this opinion.



                                                        REVERSED AND REMANDED




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