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Fracking bill fractures free speech

By Sarah Preston Special to the Daily Journal

June 12, 2014

In less than 48 hours, and with little public comment, the North Carolina House of Representatives approved a bill — which Gov. Pat McCrory later signed — that not only allowed fracking for natural gas to begin next year, but also made it a criminal offense for government officials to publicly disclose what chemicals fracking companies are pumping into the ground.


A seven-line provision in Senate Bill 786 makes it a misdemeanor for members of the Mining and Energy Commission or employees of the N.C. Department of Environment and Natural Resources to reveal information about the cocktail of chemicals pumped into the ground during hydraulic fracturing, which energy companies use to extract oil and gas from rock, if the commission has determined that the information should be protected as a “trade secret.”


Any time the government threatens to criminalize individual speech, there are obvious concerns that such measures violate the First Amendment. At the very least, this provision could chill whistleblowers who learn of fracking practices that put the health and safety of the public at risk.


The U.S. Supreme Court has repeatedly struck down attempts to criminalize the publication of truthful speech and protected the right to publish information of public importance. What’s more, North Carolina has had a law on the books protecting whistleblowers who report on improper government activity that would create a danger to public health or safety for years.


Similar protections ought to be afforded to government officials or commissioners who learn of private-company practices that could harm the public. Current law protects trade secrets, providing adequate legal recourse through civil actions providing damages to companies whose trade secrets are revealed, as well as authorizing courts to enjoin the misappropriation of a trade secret to protect a company’s work product.


These remedies are adequate to protect the rights of companies without jeopardizing free speech or chilling whistleblowers who might come forward to warn the public of danger.


The provision is also an attempt to deny the public the ability to be informed participants in the public debate around fracking in North Carolina. In less than 24 hours, the House passed SB 786 through two committees, allowing only one member of the public to speak on the bill and gave it tentative approval on the floor, all with no public notice.


As was pointed out on the floor of the House, Part V, Section 8(d) of SB 786 is particularly troubling given the lack of notice to the public or opportunity for the public to participate in the process.


It is unfortunate that the state House has chosen to retain this provision despite its well-deserved criticism.


Sarah Preston is policy director of the American Civil Liberties Union of North Carolina.