Wake County District Attorney Lorrin Freeman is urging a federal court to dismiss N.C. Attorney General Josh Stein’s lawsuit challenging a state criminal libel law. Freeman argues in new court paperwork that Stein’s suit is moot.
Freeman’s motion, filed Sunday, arrives more than three weeks after Stein asked the court to rule in his favor. He sought a court order that would deliver him a legal victory.
Stein based his request on a favorable ruling from the 4th U.S. Circuit Court of Appeals. That court ruled on Feb. 8 that Stein was likely to win his argument that the challenged law violated the First Amendment of the U.S. Constitution.
One day after the 4th Circuit’s decision, Freeman announced her office had closed its case against Stein in connection with the challenged law.
In her latest court filing, Freeman argues her decision to close the case should prompt the federal court to dismiss Stein’s lawsuit. That course would block the ruling Stein seeks. He wants the court to declare the law — N.C. Gen. Stat. § 163-274(a)(9) — unconstitutional.
“As stated by Plaintiffs: ‘This is a case about whether nine words in a political advertisement … can be criminally prosecuted as ‘false’ under N.C. Gen. Stat. §163-274(a)(9) without running afoul of the First Amendment’s prohibition on abridgment of free speech,’” wrote Joseph Zeszotarski, the private attorney who has represented Freeman in the case. “But no Plaintiff can now be ‘criminally prosecuted’ based on the ‘political advertisement’ referenced in Plaintiffs’ amended complaint — the statute of limitations for any such prosecution has expired. Accordingly, this case is moot — meaning this Court lacks subject matter jurisdiction. The case should be dismissed with prejudice.”
A dismissal “with prejudice” would block Stein from filing suit again on the same issue.
The deadline to pursue charges against Stein or any co-defendants ran out on March 23, according to Freeman’s court filing.
“As a matter of law, no Plaintiff (or anyone else for that matter) can be prosecuted for violation of the Statute based on the Stein Political Ad, due to the expiration of the statute of limitations,” Zeszotarski wrote. “The specific injunctive relief sought by Plaintiffs in the Amended Complaint — protection from prosecution under the Statute for their involvement with the Stein Political Ad – is therefore no longer needed. Under those circumstances, Plaintiffs are not ‘threatened with, an actual injury traceable to the defendant,’ and the case is moot.”
“The fact that this case involves a facial constitutional challenge to the Statute
does not alter this result,” he added. “’The Supreme Court has made it abundantly clear that one challenging the validity of a criminal statute must show a threat of prosecution under the statute to present a case or controversy.’ This threat must be both ‘real and immediate.’”
“The Stein Political Ad is in the past, and as a matter of law cannot be the subject of prosecution under the Statute because of the expiration of the statute of limitations,” Zeszotarski wrote. “Plaintiffs’ entire complaint arises out of the Stein Political Ad. … [I]t is mere ‘conjecture’ for Plaintiffs to assert that some other unknown and yet uncreated political advertisement they may become associated with in the future could result in the prosecution under the Statute.”
Freeman’s filing also referenced the 4th Circuit’s decision favoring Stein. “[T]he likelihood of any prosecution under the Statute in the future, for any political ad, is not just unlikely, but virtually impossible,” Zeszotarski wrote. “There is no ‘demonstrated probability’ that the Statute will be applied to Plaintiffs in any way, in any form, in the future.”
The challenged law, N.C. Gen. Stat. § 163-274(a)(9), dates back to 1931. The statute 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.”
A 2-1 ruling from the 4th Circuit last August gave Stein an injunction against the law. The injunction blocked Freeman’s office from pursuing criminal charges against Stein and two colleagues.
The 4th Circuit injunction arrived one day after the Wake grand jury asked the D.A.’s office to present indictments against Stein, chief of staff Seth Dearmin, and 2020 campaign manager Eric Stern.
The controversy stemmed from Stein’s 2020 re-election campaign. Stein, a Democrat, defeated Republican challenger Jim O’Neill, the Forsyth County district attorney. Stein’s winning margin was just 13,622 votes out of 5.4 million ballots cast.
Stein and O’Neill criticized each other during the campaign over the issue of untested rape kits. After O’Neill accused Stein of allowing thousands of rape kits to remain untested and “sitting on a shelf,” Stein responded with a TV ad titled “Survivor.”
The ad featured Juliette Grimmett, a sexual assault survivor who worked for Stein in the N.C. Justice Department. 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 filed a complaint with the State Board of Elections, calling the ad false and defamatory. O’Neill cited the now-disputed state law. A state elections board investigator looked into the case and turned over findings to the Wake D.A. in 2021.
Freeman had recused herself from the case, turning it over to prosecutor David Saacks. Saacks sought a more thorough investigation from the SBI. Based on that work, the Wake D.A.’s office proceeded to the grand jury last summer with possible charges connected to the ad.
Stein initially won a temporary restraining order in the case from U.S. District Judge Catherine Eagles last July. But Eagles later reassessed her ruling and refused to grant Stein an injunction.
The ”Survivor” ad aired from August through October 2020. Misdemeanor charges in North Carolina come with a two-year statute of limitations. That means that Freeman’s office faced an October 2022 deadline to proceed with charges stemming from that ad. A tolling agreement during the course of the litigation allowed the statute of limitations to extend three weeks beyond the resolution of the legal dispute. That deadline expired last week.