N.C. Attorney General Josh Stein has added three new plaintiffs to his federal lawsuit challenging a state law against campaign lies. Among the additions is a high-ranking Democratic campaign staffer in this year’s hotly contested Pennsylvania Senate race.
The 4th U.S. Circuit Court of Appeals granted Stein an injunction on Aug. 23. With a split 2-1 vote, the Appeals Court blocked the Wake County district attorney’s office from pursuing any criminal charges connected to the disputed state law.
Yet the legal case continues. An amended complaint filed Monday in U.S. District Court added three names to the original list of plaintiffs in the case. The case started July 21 with a complaint representing the Josh Stein for Attorney General Campaign; Ralston Lapp Guinn Media Group, which created Stein’s television campaign ads; and Juliette Grimmett, a sexual assault survivor and N.C. Justice Department employee who appeared in a controversial Stein ad.
The amended complaint adds the names of Stein, Seth Dearmin, and Eric Stern. Dearmin served as campaign manager during Stein’s first run for attorney general in 2016 and later became the A.G.’s chief of staff. Stern served as Stein’s campaign manager during his 2020 re-election bid.
According to Stern’s LinkedIn page, he has worked since December 2020 as deputy campaign manager for John Fetterman, the Democratic nominee in Pennsylvania’s U.S. Senate race. Fetterman faces Republican Dr. Mehmet Oz in an open contest. Republican Sen. Pat Toomey is retiring from the Senate this year. Political observers expect the Pennsylvania race to help determine which party controls the U.S. Senate in 2023.
Dearmin and Stern’s names first cropped up in connection with the Stein lawsuit on Aug. 22, That day a Wake County grand jury issued a “presentment” to the local D.A.’s office. The grand jury asked the D.A. to present indictments against Stein, Dearmin, and Stern. Stein’s and Dearmin’s names appeared on a prepared document. Stern’s name had been added by hand.
The potential Class 2 misdemeanor charges stem from a possible violation of N.C. Gen. Stat. § 163-274(a)(9), which makes it illegal to make a derogatory comment about a political candidate when the speaker knows the statement is false or makes the statement with reckless disregard of whether it’s true or false.
A 2020 Stein ad called “Survivor” triggered a complaint based on § 163-274-(a)(9). In that ad, Grimmett criticized Stein’s Republican challenger, Forsyth County District Attorney Jim O’Neill. At one point in the ad, Grimmett said, “When I learned that Jim O’Neill left 1,500 rape kits on a shelf leaving rapists on the streets, I had to speak out.”
O’Neill complained to the State Board of Elections. He argued that the ad contained false statements that could lead to charges under § 163-274(a)(9).
“Mr. Stein, Mr. Dearmin, and Mr. Stern were all involved in the process of creating Survivor,” the amended Stein complaint confirmed.
Stein’s updated complaint defends the ad. “The message of the Survivor ad was that, as District Attorney, O’Neill claimed to prioritize ‘fighting & trying to give a voice to these [sexual assault] victims’ yet had failed to effectively address the large backlog of untested rape kits on the shelves of the law enforcement agencies within his jurisdiction,” wrote Pressly Millen, Stein’s attorney. “While Stein had worked extensively as Attorney General to reduce the backlog across the state, O’Neill had failed to pursue similar efforts within his own jurisdiction.”
“That contrast was a wholly appropriate subject for the electioneering communication contained in the political advertisement,” Millen added. “Such a communication is at the very heart of what the First Amendment protects. In the United States, if a political candidate disagrees with an opponent, the remedy is to say so, and let the public decide, not seek to unleash criminal authorities to investigate political speech.”
The amended complaint confirms that State Bureau of Investigation agents interviewed Stein, Dearmin, Stern, Grimmett, and a “principal” of Ralston Lapp while working on the case.
“Plaintiffs, as (1) a victims-rights advocate, (2) a political and media consulting company, (3) a political campaign, (4) a candidate, (5) a campaign consultant, and (6) a campaign manager will be forced to restrain and temper their speech so that they avoid even the prospect that someone will claim that they violated the Statute and thereby subject themselves to lengthy and invasive investigations, potential criminal charges, and penalties,” Millen wrote. “In doing so, Plaintiffs and others are inevitably restrained from engaging in core political speech protected by the First Amendment.”
With an injunction in place, no criminal charges can proceed against Stein or his associates. The 4th Circuit has scheduled arguments in the case for December.
That could mean that no one will ever face charges in connection with the “Survivor” ad. It stopped airing in October 2020, and North Carolina has a two-year statute of limitations for misdemeanor charges.