Opinion of the Court
liability based on petitioning activity inevitably chill the exercise of this fundamental
right. Here defendants exercised their constitutional right to petition the government
when speaking at the public zoning hearings, a political process. We hold that the
First Amendment of the United States Constitution and Article I, Section 12 of the
North Carolina Constitution explicitly protect petitioning activity, including
defendants’ speech in this case. Therefore, we reverse the decision of the Court of
Appeals.
¶2 Because this case involves a motion to dismiss, we take the following
allegations as true from plaintiff’s complaint. In the summer of 2013, Cheryl Lloyd
Humphrey Land Investment Company, LLC (plaintiff), began negotiations with a
third party, Braddock Park Homes, Inc. (Braddock Park), to sell approximately 45
acres of land located in Hillsborough. Braddock Park planned to develop the land into
a 118-unit subdivision of townhomes. A five-and-a-half acre portion of the property,
referred to as Enoe Mountain Village (EMV Property), is located adjacent to the
open-quarry mine that Resco Products, Inc. and Piedmont Minerals Company, Inc.
(together, defendants) jointly own.
¶3 The property could not be developed as planned unless the Town of
Hillsborough (Town) annexed the land and rezoned1 it as “Multi-Family Special Use.”
1 We refer to the annexation and rezoning of plaintiff’s land collectively as “rezoning.”
Further, we refer to the body deciding whether to rezone plaintiff’s land and before which defendants made their contested statements as the “Town.”
In the fall of 2013, the Town began a series of hearings to allow the public to express
their views about the rezoning petition. Defendants’ representatives attended the
public hearings and opposed the rezoning of the EMV Property. Defendants’
representatives told the Town that (1) they operate an active mine adjacent to the
EMV Property; (2) they regularly engage in explosive blasting at the mine; and (3)
they conduct the explosive blasting operations roughly 300 feet from the EMV
Property. Defendants’ representatives “maliciously, intentionally and without
justification misrepresented” that future residents living on the EMV Property could
be endangered by fly rock, excessive air blasts, and excessive ground vibrations from
the blasting operations. When questioned, defendants admitted that they had not
reported any violations of ground vibration or air blast limits or the occurrence of fly
rock beyond the mine’s permitted areas since the date of their last mining permit.
Further, defendants conceded they could conduct their operations without
endangering the future improvements to or residents of the EMV Property. They
admitted that doing so would require additional safety precautions, increasing their
costs. Despite the opposition expressed by defendants’ representatives, the Town
rezoned all of the land as residential and issued the necessary permit in early
February of 2014.
¶4 Thereafter, plaintiff and Braddock Park entered into a Purchase and Sale
Agreement, whereby Braddock Park would purchase the entire 45-acre parcel.
However, in the agreement, Braddock Park reserved the right to exclude the EMV
Property from the purchase. Later Braddock Park exercised this contractual right to
exclude the EMV Property from the purchase, citing the dangers that defendants’
representatives reported to the Town—i.e., fly rock and damage to the foundations of
homes.
¶5 Plaintiff thereafter filed its complaint alleging that “[b]y virtue of their
intentional and malicious misrepresentations made to the Town of Hillsborough, the
Defendants tortiously interfered with the Plaintiff’s prospective economic advantage
by inducing Braddock Park Homes, Inc., not to perform [the purchase of the EMV
Property].” Defendants moved to dismiss the complaint under Rule 12(b)(6) of the
North Carolina Rules of Civil Procedure, arguing they were immune from liability
because their statements to the Town were constitutionally protected petitioning
activity. The trial court granted defendants’ motion to dismiss. Plaintiff appealed.
¶6 The Court of Appeals reversed, reasoning that this case involves the
applicability of the Noerr-Pennington doctrine under the United States Constitution,
which provides immunity from antitrust liability based on petitioning activity. Cheryl
Lloyd Humphrey Land Inv. Co., LLC v. Resco Prods., Inc., 266 N.C. App. 255, 258–59,
831 S.E.2d 395, 398 (2019). Given the apparent limitations of Noerr-Pennington, the
Court of Appeals reasoned that defendants’ conduct—speaking in opposition to the
rezoning of plaintiff’s land—would fall outside of the doctrine’s protections. Id. at 263,
831 S.E.2d at 401. The Court of Appeals then determined that defendants may have
overstated the dangerousness of their blasting activity, despite the classification of
blasting as ultrahazardous under North Carolina law. Id. at 265, 831 S.E.2d at
402–03. Further, the Court of Appeals concluded that the statements inducing
Braddock Park to exercise their contractual right to exclude the EMV Property were
sufficient to show interference in a business relationship. Id. at 268–69, 831 S.E.2d
at 403–05. Thus, the Court of Appeals determined that plaintiff’s complaint
adequately alleged tortious interference with prospective economic advantage to
survive dismissal under Rule 12(b)(6). Id. at 270, 831 S.E.2d at 405.
¶7 Defendants sought review, which this Court allowed, to determine whether
defendants must defend a lawsuit premised on statements made while speaking at
the public rezoning hearings. The right to petition the government, protected by both
the First Amendment to the United States Constitution and Article I, Section 12 of
the North Carolina Constitution, prevents a person from being subjected to a lawsuit
based on that person’s petitioning activity. Here plaintiff’s suit is based on
defendants’ presentation at the rezoning hearings, which is protected petitioning
activity. We hold that defendants’ petitioning is protected by the First Amendment
and Article I, Section 12.
¶8 This Court reviews a trial court’s order on a motion to dismiss de novo, Bridges
v. Parrish, 366 N.C. 539, 541, 742 S.E.2d 794, 796 (2013), and considers “whether the
allegations of the complaint, if treated as true, are sufficient to state a claim upon
which relief can be granted under some legal theory,” Coley v. State, 360 N.C. 493,
494–95, 631 S.E.2d 121, 123 (2006) (quoting Thompson v. Waters, 351 N.C. 462, 463,
526 S.E.2d 650, 650 (2000)).
Dismissal under Rule 12(b)(6) is proper when one of the following three conditions is satisfied: (1) the complaint on its face reveals that no law supports the plaintiff’s claim; (2) the complaint on its face reveals the absence of facts sufficient to make a good claim; or (3) the complaint discloses some fact that necessarily defeats the plaintiff’s claim.
Wood v. Guilford Cty., 355 N.C. 161, 166, 558 S.E.2d 490, 494 (2002) (citing Oates v.
JAG, Inc., 314 N.C. 276, 278, 333 S.E.2d 222, 224 (1985)).
¶9 The First Amendment provides that “Congress shall make no law . . . abridging
the freedom of speech, or of the press; or the right of the people peaceably to assemble,
and to petition the Government for a redress of grievances.” U.S. Const. amend. I
(emphasis added). “The right of petitioning is an ancient right. It is the cornerstone
of the Anglo-American constitutional system.” Norman B. Smith, “Shall Make No
Law Abridging . . .”: An Analysis of the Neglected, but Nearly Absolute, Right of
Petition, 54 U. Cin. L. Rev. 1153, 1153 (1986). The Magna Carta of 1215, “the
fundamental source of Anglo-American liberties,” states that if the king’s officials
were “ ‘at fault toward anyone,’ ” then the barons could “ ‘lay[ ] the transgression
before [the king], [and] petition to have the transgression redressed without delay.’ ”
Id. at 1155 (emphasis omitted) (quoting William S. McKechnie, Magna Carta, A
Commentary on the Great Charter of King John 467 (2d ed. 1914)).
In 1689, the [English] Bill of Rights exacted of William and Mary stated: “[I]t is the Right of the Subjects to petition the King.” This idea reappeared in the Colonies when the Stamp Act Congress of 1765 included a right to petition the King and Parliament in its Declaration of Rights and Grievances. And the Declarations of Rights enacted by many state conventions contained a right to petition for redress of grievances.
McDonald v. Smith, 472 U.S. 479, 482–83, 105 S. Ct. 2787, 2790 (1985) (second
alteration in original) (citations omitted).
¶ 10 The United States Supreme Court has often addressed the right to petition as
a defense to antitrust liability. See E. R.R. Presidents Conf. v. Noerr Motor Freight,
Inc., 365 U.S. 127, 138, 81 S. Ct. 523, 529–30 (1961) (holding the right to petition
precluded antitrust liability under the Sherman Act); see also United Mine Workers
of Am. v. Pennington, 381 U.S. 657, 671, 85 S. Ct. 1585, 1594 (1965) (reiterating the
holding of Noerr). Although the holdings from Noerr and its progeny—the
Noerr-Pennington doctrine—originated in the antitrust context, the First
Amendment principles upon which the doctrine rests are foundational to our political
system. Therefore, the protections afforded by the right to petition, recognized in the
First Amendment, are not limited to antitrust matters. See Prof’l. Real Estate Inv’rs.,
Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 59, 113 S. Ct. 1920, 1927 (1993)
(acknowledging the right to petition functions in “other contexts,” not solely “as an
antitrust doctrine”); see also McDonald, 472 U.S. at 485, 105 S. Ct. at 2791 (holding
that the right to petition, while not absolute, provides the same protection in
defamation actions as the freedoms of speech, press, and assembly).
¶ 11 Rather, the right to petition protects efforts to influence the actions of
government officials, whether in the legislative, executive, or judicial branch. See
Congressional Research Service, S. Doc. 99-16, The Constitution of The United States
of America: Analysis and Interpretation, 1141–45 (Johnny H. Killian & Leland E.
Beck eds., 1982). Protected petitioning activity includes lobbying local officials
regarding a zoning ordinance. See City of Columbia v. Omni Outdoor Advert., Inc.,
499 U.S. 365, 382, 111 S. Ct. 1344, 1355 (1991) (holding that the right to petition
precluded liability for lobbying in favor of a local zoning ordinance). The right to
petition protects petitioning activity “regardless of intent or purpose” because
whether “a private party’s political motives are selfish is irrelevant[.]” Id. at 380, 111
S. Ct. at 1354 (citing Pennington, 381 U.S. at 670, 85 S. Ct. at 1593). In a political
process meant to address public concerns, a commitment to “free and open debate”
means other parties are free to counter selfish or misleading speech with speech of
their own. Connick v. Meyers, 461 U.S. 138, 145, 103 S. Ct. 1684, 1689 (1983) (quoting
Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, Will Cty., Ill., 391 U.S. 563,
571–72, 88 S. Ct. 1731, 1736 (1968)).
¶ 12 Predating the federal Bill of Rights, the North Carolina Constitution has
protected the right to petition since 1776. See N.C. Const. art. I, § 12; N.C. Const. of
1868, art. I, § 25; N.C. Const. of 1776, Declaration of Rights § 18. Article I, Section 12
provides that “[t]he people have a right to assemble together to consult for their
common good, to instruct their representatives, and to apply to the General Assembly
for redress of grievances[.]” N.C. Const. art. I, § 12. Provisions like Article I, Section
12 in state declarations of rights served as a model for the Bill of Rights. See Smith,
Shall Make No Law Abridging, at 1174 (noting that state declarations of rights
“expressly included the right to petition” prior to the Bill of Rights). Because the
General Assembly “delegate[s] a portion of [its] power to municipalities,” petitioning
activity can occur at the local government level. King v. Town of Chapel Hill, 367 N.C.
400, 406, 758 S.E.2d 364, 370 (2014); see High Point Surplus Co. v. Pleasants, 264
N.C. 650, 656, 142 S.E.2d 697, 702 (1965) (stating the General Assembly
“strengthen[ed] local self-government by providing for the delegation of local matters
by general laws to local authorities” (emphasis omitted)).
¶ 13 These local governments are “[l]ocal political subdivisions [that] are ‘mere
instrumentalities of the State for the more convenient administration of local
government[.]’ ” Town of Boone v. State, 369 N.C. 126, 131, 794 S.E.2d 710, 714 (2016)
(quoting Holmes v. City of Fayetteville, 197 N.C. 740, 746, 150 S.E. 624, 627 (1929));
see also King, 367 N.C. at 404, 758 S.E.2d at 369 (“[The Town of Chapel Hill is] a
mere creation of the legislature[.]” (citing Pleasants, 264 N.C. at 654, 142 S.E.2d at
701)). The right to petition protected by Article I, Section 12 is “connect[ed] with the
mechanics of popular sovereignty” which can occur before these local political
subdivisions. John V. Orth & Paul Martin Newby, The North Carolina State
Constitution 58 (2d ed. 2013). Article I, Section 12 thus protects petitioning activity
before “local political subdivisions” such as a town.
¶ 14 Protecting the right to petition requires early dismissal of lawsuits that
impermissibly seek to infringe on the right and thus chill petitioning activity
occurring in these political contexts. See Bill Johnson Rests. v. NLRB, 461 U.S. 731,
740–41, 103 S. Ct. 2161, 2168 (1983) (“A lawsuit no doubt may be used by [a party]
as a powerful instrument of coercion or retaliation . . . . [T]he [opposing party] will
most likely have to retain counsel and incur substantial legal expenses to defend
against it.” (citing Power Sys., Inc., 239 N.L.R.B. 445, 449–50 (1978), enf. denied, 601
F.2d 936 (7th Cir. 1979))). “[T]he pall of fear and timidity imposed upon those who
would give voice to public criticism is an atmosphere in which the [right to petition]
cannot survive.” New York Times Co. v. Sullivan, 376 U.S. 254, 278, 84 S. Ct. 710,
725 (1964). When a lawsuit is premised on a party’s petitioning activity, the First
Amendment and Article I, Section 12 mandate early dismissal.
¶ 15 The question here is whether defendants’ speech constitutes protected
petitioning activity. Taking the allegations of plaintiff’s complaint as true, defendants
“maliciously, intentionally and without justification” made misrepresentations
regarding the dangers of fly rock, excessive air blasts, and ground vibrations from
their own mining activity. Defendants, however, made these statements during a
public zoning process before the Town. The Town is a clear example of a local political
subdivision with delegated authority from the General Assembly. Zoning is a political
process by which a local government seeks citizen input to make informed decisions
for the good of the whole. Neither the maliciousness nor the falsity of the statements
has any bearing on our analysis. Rather than subjecting to civil liability misleading
or malicious speech made before a local political subdivision during a public zoning
process, our constitutions protect free and open debate so that citizens may voice their
concerns to the government without fear of retribution. Plaintiff’s remedy is to expose
the falsity of the statements and submit alternative evidence, as plaintiff did here.
During the process, defendants’ misstatements of the current risk associated with
their mining activities and their financial incentives were exposed. The evidence
taken as a whole convinced the Town to rezone the EMV Property over defendants’
objections. That Braddock Park declined to purchase the EMV Property, to plaintiff’s
economic disadvantage, does not remove protection from defendants’ speech.
Therefore, defendants’ statements during the zoning process constitute protected
petitioning activity.
¶ 16 The right to petition the government is a fundamental right. Here defendants’
testimony during the public zoning process constitutes petitioning activity. Because
early dismissal is necessary to protect the exercise of this fundamental right, the trial
court properly granted defendants’ motion to dismiss plaintiff’s lawsuit. Accordingly,
we reverse the decision of the Court of Appeals.
REVERSED.