N.C. Attorney General Josh Stein’s latest filing in the 4th U.S. Circuit Court of Appeals makes the case for declaring a 91-year-old state law unconstitutional. The law creates a misdemeanor crime for people who lie about candidates in election campaigns.
A split 4th Circuit panel already voted, 2-1, to give Stein a temporary win in the case. The panel agreed on Aug. 23 to block Wake County District Attorney Lorrin Freeman’s office from using the law to bring indictments against Stein and his associates.
That decision could end up saving Stein and other plaintiffs from prosecution. The statute of limitations in the case could run out next month. The Appeals Court is scheduled to hear arguments in Stein’s lawsuit in December.
“In the 2020 election for North Carolina Attorney General, the two candidates publicly traded accusations about a matter of public policy and public interest: the handling of untested rape kits by law enforcement officials,” according to the latest filing from Pressly Millen, the attorney representing Stein and other plaintiffs in the case titled Grimmett v. Freeman. “After numerous
accusations by the challenger about the record of Attorney General Josh Stein, the Stein Campaign ran a political advertisement taking to task the challenger – a local district attorney – for ignoring the untested rape kits in his own judicial district.”
“Rather than engage in counterspeech from his candidate’s platform (or filing a civil defamation claim), the challenger’s campaign sought to enlist the police power of the state to regulate political speech,” Millen wrote. “The challenger filed a complaint with the North Carolina State Board of Elections demanding that it investigate the political advertisement under an archaic North Carolina statute that makes it a crime to make a ‘derogatory report’ about a candidate ‘knowing such report to be false or in reckless disregard of its truth or falsity.’ The criminal statute in question was passed in 1931 and has been virtually unused in the 91 years since.”
“The Board investigated the political advertisement and – after determining that the statements claimed to be false were ‘ambiguous’ and the constitutionality of the statute problematic – closed its investigation.”
“Despite those conclusions by the Board, another local district attorney, the Defendant here, decided to conduct her own investigation and, after a year-long inquiry, determined to proceed to a grand jury,” Millen added. “After the district court denied Plaintiffs’ request for a preliminary injunction prohibiting initiation of grand jury proceedings, Plaintiffs sought an injunction pending appeal. This Court granted that request, concluding that Plaintiffs are likely to succeed in their challenge to this regulation of core political speech.”
“The North Carolina statute at issue violates the First Amendment because it is a content-based restriction that criminalizes core political speech – statements about candidates and elections – in a manner that is overbroad in the speech that it reaches, underinclusive in the campaign speech that it allows, and not narrowly tailored to serve the government’s interest using the least restrictive means,” Millen argued. “The statute cannot meet the Supreme Court’s strict-scrutiny test for content-based restrictions on speech, and it should therefore be declared unconstitutional, just as other courts have declared similar statutes to be unconstitutional.”
Stein and other plaintiffs ask the Appeals Court to reverse a federal trial judge’s decision to deny a preliminary injunction in the case. Plaintiffs also ask the court “to rule that the Statute is unconstitutional on its face.”
Two 4th Circuit judges already have signaled support for Stein’s position in the case.
“We conclude plaintiffs have satisfied the demanding standard for obtaining an injunction pending appeal,” according to the Aug. 23 order endorsed by Appeals Court Judges Toby Heytens and Albert Diaz. President Biden appointed Heytens to the 4th Circuit. Former President Barack Obama appointed Diaz.
“Most critically, plaintiffs have made a ‘strong showing that [they are] likely to succeed on the merits’ of their First Amendment challenge,” according to the order.
A Wake County grand jury issued a presentment on Aug. 22 asking the D.A.’s office to prepare indictments targeting Stein, his chief of staff Seth Dearmin, and his 2020 campaign manager Eric Stern. Charges would have been based on N.C. Gen. Stat. § 163-274(a)(9). That law dating back to 1931 creates a Class 2 misdemeanor charge for people who lie about political candidates.
The 4th Circuit’s ruling blocked any further action against Stein and his associates.
Heytens and Diaz raised concerns about the law’s potential to criminalize true statements. “[T]he First Amendment does not permit a State to criminalize ‘true statements,’ even those ‘made with “actual malice.”’ And it appears the law challenged here does just that by criminalizing a ‘derogatory report’ made either ‘knowing such report to be false or in reckless disregard of its truth or falsity.’”
Stein and fellow plaintiffs in his federal lawsuit “have demonstrated that irreparable harm is likely” without an injunction. “[P]laintiffs have credibly alleged that their political speech will be chilled should a prosecution go forward.”
Judge Allison Jones Rushing, an appointee of former President Donald Trump, dissented.
“Plaintiffs have not shown that they are entitled to the ‘extraordinary relief’ of ‘an injunction against enforcement of a presumptively constitutional state legislative act’ pending their appeal from the district court’s denial of exactly that relief,” Rushing wrote.
Rushing disputed the notion that plaintiffs would suffer “irreparable” harm. “No Plaintiff claims that their speech is currently being chilled, or will imminently be chilled, because of the possible future enforcement of the North Carolina statute.”
The dissenting judge also questioned the majority’s assessment of the public interest. “The people of North Carolina have an interest in letting North Carolina’s courts construe this untested state statute in the normal course if it is actually enforced,” Rushing wrote.
The dispute arose from North Carolina’s 2020 election for attorney general. Stein, the incumbent Democrat, faced a challenge from Republican Jim O’Neill, the Forsyth County district attorney. Stein won re-election by just 13,622 votes out of 5.4 million ballots cast.
The two candidates 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 Juliette 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.
O’Neill lodged a complaint to the N.C. State Board of Elections. He cited N.C. Gen. Stat. § 163-274(a)(9), which declares it unlawful, as 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 original lawsuit listed the Stein campaign, Grimmett, and the company that created the ad as plaintiffs. Since the grand jury presentment, the lawsuit has added Stein, Dearmin, and Stern as plaintiffs.
Freeman’s office will have a chance to file a reply brief by Oct. 11.