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Split 4th Circuit panel grants Stein injunction against criminal charges linked to disputed N.C. law

Attorney General Josh Stein working
Attorney General Josh Stein working. Source: joshstein.org

RALEIGH — In a split 2-1 ruling, the 4th U.S. Circuit Court of Appeals has granted N.C. Attorney General Josh Stein an injunction that will likely help him avoid criminal charges linked to a controversial 2020 campaign ad.

The injunction blocks the Wake County district attorney from taking any action against Stein or his associates “pending further order of this Court.” Appellate judges scheduled arguments in the case for December.

The statute of limitations in the case is scheduled to run out in October, so it’s unlikely that Stein or anyone else will face any charges in connection with the 2020 ad.

“We conclude plaintiffs have satisfied the demanding standard for obtaining an injunction pending appeal,” according to the order endorsed by Appeals Court Judges Toby Heytens and Albert Diaz. President Biden appointed Heytens to the 4th Circuit Court. 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 Monday 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.

Now the 4th Circuit’s ruling will block 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.”

Heytens and Diaz did not accept the Wake D.A.’s arguments about the statute of limitations, calling the issue “self-inflicted, because the district attorney has not adequately explained why it was necessary to wait so long to bring charges in a case where the alleged crime was broadcast on television nearly two years ago.”

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The injunction also “serves the broader public interest,” the court’s majority ruled. “Candidates currently running for office in North Carolina might well be chilled in their campaign speech by the sudden reanimation of a criminal libel law that has been dormant for nearly a century — harming the public’s interest in a robust campaign.”

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. 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 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.”

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