Lawyers representing N.C. Attorney General Josh Stein and Wake County District Attorney Lorrin Freeman offered opposing written arguments Monday in a dispute involving a state law against campaign lies.
Both sides in the case filed new documents for U.S. District Judge Catherine Eagles. She could decide as early as Thursday whether to extend a temporary restraining order she issued last week. That July 25 order blocks enforcement of the law.
A new preliminary injunction from Eagles would stop Freeman from pursuing any charges related to the law until the entire legal dispute has been resolved.
“Plaintiffs contend that Defendant cannot ‘show cause … why this restraining order should not be continued as a preliminary injunction to the final adjudication of this cause,’ because N.C. Gen. Stat. § 163-274(a)(9) – the Statute sought to be enforced by Defendant – abridges First Amendment freedom of speech by seeking to regulate core political speech in a manner not tailored to achieve a compelling state interest,” according to a memorandum from Pressly Millen. He represents Stein’s campaign organization, the company that prepares Stein’s television ads, and Juliette Grimmett, who appeared in the campaign ad that generated the legal controversy.
In his 2020 re-election bid, Stein ran a TV ad against Republican challenger Jim O’Neill, the Forsyth County District Attorney. The ad featured Grimmett, a sexual assault survivor who worked for Stein at the N.C. Department of Justice.
“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.
O’Neill cited N.C. Gen. Stat. § 163-274(a)(9), a state law from 1931, in registering a complaint about the ad with the N.C. State Board of Elections. The disputed law created a Class 2 misdemeanor “For any person to publish or cause to be circulated derogatory reports with reference to any candidate in any primary or election, knowing such report to be false or in reckless disregard of its truth or falsity, when such report is calculated or intended to affect the chances of such candidate for nomination or election.”
The state elections board investigated O’Neill’s complaint and turned over its findings to Freeman in July 2021.
Freeman’s latest filing explains that a prosecutor in her office warned Stein’s counsel on July 7 that a charge would be presented to a grand jury later in July. Stein and his fellow plaintiffs went to federal court on July 21 to block the law, citing “imminent” enforcement action.
The Wake D.A. now urges Eagles to deny Stein’s motion for a longer-lasting preliminary injunction.
“[T]he criminal investigation produced evidence tending to show (a) that Stein and others in his campaign were aware of the content of the Stein Political Ad, and approved of same; (b) that the Stein Political Ad was false, because an elected district attorney does not possess any untested [rape kits] in North Carolina and could not submit all untested [rape kits] to the State Crime Lab at one time, because of the protocol for submission in batches that had been put in place by the Crime Lab itself; (c) Stein and others in his campaign were aware of and/or recklessly indifferent to that falsity, given their positions as lawyers and elected officials intricately involved in the legislation creating the [rape kit] initiative; and (d) the Stein Political Ad was derogatory toward his political opponent,” according to the latest filing from Joseph Zeszotarski, Freeman’s attorney.
“Plaintiffs claim that the publication of a knowingly false political advertisement, designed to be derogatory toward the opponent of the candidate offering the ad, is completely protected by the First Amendment,” Zeszoktarki added. “In essence, Plaintiffs argue that political candidates in North Carolina are permitted to purposefully lie about their opponent to gain an advantage over their opponent in an election, and are protected by the First Amendment to do so. This cannot be the law.”
Eagles will hear arguments from Stein and Freeman at 9:30 a.m. Thursday.