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Stein to appeal ruling against him in challenge of N.C. law against campaign lies

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

Lawyers for N.C. Attorney General Josh Stein and two other plaintiffs plan to appeal this week’s ruling against them in U.S. District Court. They want federal courts to throw out a 1931 state criminal law against campaign lies.

The one-sentence notice of appeal arrived Wednesday in the federal court.

In a related development, the N.C. Democratic Party is calling for a criminal investigation of Stein’s 2020 campaign opponent.

On Tuesday District Judge Catherine Eagles denied Stein’s attempt to block prosecution against him in connection with the disputed state law. The decision paves the way for the Wake County district attorney to take a charge against Stein to the grand jury.

Along with the notice of appeal, the plaintiffs also asked Eagles to issue an injunction in the case while the 4th U.S. Circuit Court of Appeals considers the dispute.

“This case is about a statute that criminalizes core political speech, there are substantial reasons to contend that statute is unconstitutional on its face, and, absent an injunction, Defendant immediately intends to enforce the statute for the first time in living memory,” wrote plaintiffs’ attorney Pressly Millen. “If that prosecution proceeds and the Fourth Circuit agrees that N.C. Gen. Stat. § 163-274(a)(9) is unconstitutional, then there will be no way to undo the harm Plaintiffs have suffered from prosecutions that violated their First Amendment rights. An injunction pending appeal, by contrast, would preserve both parties’ rights while the Fourth Circuit considers these issues.”

“The plaintiffs are not likely to succeed on the merits of their facial constitutional claim,” Eagles wrote Tuesday. Eagles denied Stein’s request for a preliminary injunction against Wake D.A. Lorrin Freeman’s office. Eagles also ended the temporary restraining order she had granted to Stein on July 25.

Stein had filed suit in federal court July 21, shortly before Freeman’s office was scheduled to present a charge to the Wake County grand jury. Stein’s suit seeks to have the 91-year-old state law declared unconstitutional. The suit contends the law violates plaintiffs’ First Amendment free-speech rights.

N.C. Gen. Stat. § 163-274(a)(9), 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 statute criminalizes false defamatory speech about public officials made with actual malice; such a statute is constitutionally permissible,” Eagles wrote in her 17-page order. “Assuming a more exacting level of scrutiny applies because the statute is directed to political speech, the statute advances compelling state interests in protecting against fraud and libel in elections and is narrowly tailored to serve those interests.”

That opinion marked a change for Eagles. In granting a temporary restraining order for Stein and fellow plaintiffs on July 25, Eagles had written that Stein had “shown a likelihood of prevailing on the merits.”

By Tuesday the judge had changed her mind. She accepted Freeman’s argument that the law could withstand Stein’s legal challenge.

“Because § 163-274(a)(9) is a criminal libel law that prohibits false defamatory speech made with actual malice and withstands scrutiny appropriate for restrictions on false defamatory political speech, the plaintiffs are unlikely to succeed on the merits of their constitutional claim,” Eagles wrote Tuesday.

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“The statute is narrowly tailored to promote compelling state interests in protecting candidates for office from false defamatory statements, protecting governmental processes from fraud, and protecting elections from being undermined by ‘those unscrupulous enough and skillful enough to use the deliberate or reckless falsehood as an effective political tool,’” Eagles added.

“False malicious defamatory speech can be ‘used as an effective political tool to unseat the public servant or even topple an administration’ and can lead to volatile, unstable, and even violent results ‘at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected,’” Eagles concluded. “Because § 163-274(a)(9) is a criminal libel law that falls within a category of speech long subject to appropriate content-based restrictions; … and is appropriately narrowed to address legitimate and substantial governmental and public interests and to provide breathing room for protected speech, the plaintiffs’ constitutional claim that § 163-274(a)(9) facially violates the First Amendment is not likely to succeed on the merits.”

The dispute dates back to Stein’s 2020 re-election campaign. 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 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, Grimmett 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.

Misdemeanor charges in North Carolina face a two-year statute of limitations. Since the disputed TV ad stopped airing in October 2020, time is running out for Freeman’s office to proceed with charges against the Stein campaign, Grimmett, or any other parties.

As Stein’s legal battle continues, the state Democratic Party entered the fray. The party delivered a letter to Freeman on Wednesday “requesting a prompt and thorough investigation and prosecution of Jim O’Neill for making false and derogatory reports,” according to a news release.

“Judge Eagles’ reversal yesterday makes clear that District Attorney Freeman should apply equal protection under the law and open an investigation into Jim O’Neill’s repeated efforts to spread knowingly false and derogatory reports against Attorney General Stein with the intent to hurt his reelection campaign,” said the N.C. Democratic Party’s Kate Frauenfelder. North Carolina’s sexual assault survivors have a champion in Attorney General Stein and any attempt to imply otherwise is a distraction from the important work that he is leading on behalf of our state.”

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