North Carolina attorney general argues law against false campaign statements chills free speech
(The Center Square) — A North Carolina election law that prohibits false and derogatory statements against political candidates “threatens to chill speech at the heart of democratic process,” state Attorney General Josh Stein argued in a federal court filing this week.
Stein is challenging a 1931 North Carolina statute that makes it a 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 grand jury asked the Wake County District Attorney to present indictments against Stein, chief of staff Seth Dearmin, and 2020 campaign manager Eric Stern for violating the 1931 law during the 2020 election for an ad that criticized his opponent, Forsyth County District Attorney Jim O’Neill, over untested rape kits.
O’Neill contends he had no authority as district attorney to force law enforcement agencies to send the kits to the State Crime Lab, and filed a complaint with election officials.
Stein filed a federal lawsuit in July claiming the law violates the First Amendment, and he appealed to the 4th U.S. Circuit Court of Appeals after a district court denied a preliminary injunction. The appeals court granted the injunction against the law in August, and a tolling agreement halted a two-year statue of limitations that was set to expire in October. The injunction prevents the district attorney from pursuing criminal charges.
Stein wants the appeals court to strike down the 1931 law, and his brief filed Tuesday explains why.
“The Statute is a content-based restriction on core political speech that lacks a compelling justification or narrowly tailored safeguards,” the brief read. “It threatens to chill speech at the heart of our democratic process.”
“The Supreme Court has never upheld such a law, and it cannot survive First Amendment review,” according to the brief. “Yet Defendant contends that Garrison v. Louisiana establishes that any criminal libel statute is constitutional so long as it embodies an actual-malice standard and that no further scrutiny is required.”
Attorneys representing Wake County District Attorney Lorrin Freeman have cited the 1964 U.S. Supreme Court decision in the Louisiana criminal defamation case Garrison v. Louisiana in defense of North Carolina’s 1931 law, and Stein’s brief explained why he believes that’s wrong, The Carolina Journal reports.
“That argument misreads Garrison, misinterprets the surrounding body of First Amendment law, and would not even justify the North Carolina Statute, which proscribes truthful derogatory speech,” according to the brief. “And under strict scrutiny, Defendant has failed to carry her burden to show how the Statute logically serves its asserted interest or why less-restrictive alternatives are inadequate.”
“No one welcomes false derogatory campaigning. Indeed, Plaintiffs are hostile to it and responded to derogatory campaigning here as the American political process and Constitution expect: with counterspeech so that the electorate may decide,” Stein’s attorneys wrote.
“North Carolina also provides private civil remedies for damages to personal reputation,” the brief read. “But North Carolina’s poorly tailored and outlier criminal Statute – rarely used and never effective – harms rather than helps the electoral process.”
Stein is represented by Michael Dreeben, a former U.S. deputy solicitor general and veteran U.S. Supreme Court attorney, as well as other Washington, D.C.- and Raleigh-based attorneys.
Raleigh attorney Joseph Zeszotarski is representing Freeman.
The appeals court is expected to announce the identity of the three-judge panel the morning of oral arguments on Dec. 6, The Carolina Journal reports.
