U.S. District Judge Catherine Eagles has denied N.C. Attorney General Josh Stein’s latest request in his lawsuit challenging a state law against campaign lies. Eagles will not block her earlier ruling against Stein while he continues his appeals.
Stein contends that the law violates First Amendment free-speech rights. He is asking federal courts to block Wake County District Attorney Lorrin Freeman from pursuing criminal charges in connection with the law.
“There is case law tending to support the plaintiffs’ arguments that [the state law] on its face violates the First Amendment,” Eagles wrote in an order issued Monday. “Two circuit courts and one state Supreme Court have held similar statutes violate the First Amendment. Upon initial review in an emergency context, the Court held that the plaintiffs made a sufficient showing for a temporary restraining order.
“But after more thorough briefing, additional research, and further consideration, the Court concluded otherwise, in light of differences in the statutes and controlling Supreme Court authority,” Eagles added. “The plaintiffs have a good argument, but it is difficult to say the plaintiffs have made a strong showing of facial invalidity. In any event, other factors weigh against an injunction.”
Stein and his fellow plaintiffs could face potential misdemeanor criminal charges in connection with the law.
“The potential for state prosecution is not likely to result in irreparable harm,” the judge wrote. “It is not certain that a grand jury will find probable cause for charging any of these plaintiffs
with a crime. If and when it does, the charged person can raise these constitutional defenses in state court.”
Potential criminal charges for Stein and other plaintiffs in the case would result from a television ad Stein aired during his 2020 re-election campaign. The ad, titled “Survivor,” featured Juliette Grimmett, an employee of Stein’s N.C. Justice Department. The ad criticized Stein’s Republican challenger.
“[T]here is a looming statute of limitations and the plaintiffs’ proposed injunction prohibiting enforcement while an appeal is pending threatens District Attorney Freeman’s ability to ever bring charges stemming from the ‘Survivor’ ad if and when the constitutionality of the statute is upheld,” Eagles wrote. “The parties appear to agree that the two-year statute of limitations expires in late October 2022, and there is no guarantee the plaintiffs’ interlocutory appeal will be resolved by then.”
Eagles also discounted Stein’s argument that a criminal investigation is moving forward despite the N.C. State Board of Elections’ 2021 recommendation against legal action.
“[W]hether [the law] is unconstitutional as applied was not briefed by the parties or addressed by the Court,” the judge wrote. “This new information does not affect the Court’s analysis … and is not a basis for the proposed injunction pending appeal. It also is something that can be addressed in state court, if and when any defendant is charged with violating this statute.”
In 2020 the incumbent N.C. Attorney General Stein, a Democrat, faced a challenge from Forsyth County District Attorney Jim O’Neill, a Republican.
The two clashed during the campaign over rape kits used to help identify and prosecute offenders. Stein and O’Neill blamed each other for a backlog of untested kits.
Stein ran a TV ad, titled “Survivor,” featuring Grimmett, a sexual assault survivor who worked for Stein at the N.C. Department of Justice. At one point in the 30-second ad, Grimett criticized O’Neill.
“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,” Grimmett said in the ad. She is one of the plaintiffs in the federal case, along with the Stein campaign and the company that prepared the campaign ad.
O’Neill cited the state criminal libel law in a complaint to the N.C. State Board of Elections. The board investigated O’Neill’s complaints and turned over its findings to Freeman’s office in July 2021. The SBI also launched an investigation.
On July 7 this year, Freeman’s office alerted the Stein campaign that it planned to present a charge connected to the criminal libel law to the grand jury. Stein filed his suit two weeks later. Published reports suggest the attorney general secured his restraining order against Freeman less than an hour before the Wake grand jury could have heard the charge.
Without a stay from Eagles or the 4th U.S. Circuit Court of Appeals, Freeman’s office could proceed with taking charges to the Wake grand jury.