After 4th Circuit win, Stein asks court to declare N.C. criminal libel law unconstitutional

N.C. Attorney General Josh Stein. source:

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  • N.C. Attorney General is asking a federal court to declare North Carolina's 1931 criminal libel law unconstitutional.
  • Stein's request follows a February ruling from the 4th U.S. Circuit Court of Appeals that the attorney general was likely to win his case challenging the law.
  • Wake County District Attorney Lorrin Freeman already has announced she has closed her case against Stein in connection with the challenged law.

Almost a month after securing a legal victory at the 4th U.S. Circuit Court of Appeals, N.C. Attorney General Josh Stein is asking a federal trial court to rule a state criminal libel law unconstitutional.

Stein’s lawyers filed a motion Thursday for summary judgment in his lawsuit challenging the criminal libel law. It’s officially known as N.C. General Statute § 163-274(a)(9).

“[T]here is no genuine issue of material fact in this action, and … Plaintiffs are therefore entitled to a declaratory judgment as a matter of law that N.C.G.S. § 163-274(a)(9) is unconstitutional and violates the First Amendment of the United States Constitution,” wrote Pressly Millen, the private lawyer representing Stein, his campaign committee, and four other plaintiffs in the case.

Stein cites the Appeals Court’s Feb. 8 ruling against the law. The 4th Circuit issued a ruling establishing that the challenged law is “facially unconstitutional under the First Amendment,” Millen wrote in paperwork supporting his motion.

“In its opinion, the Fourth Circuit held that the Statute ‘is likely unconstitutional for two reasons. First, the Act appears to criminalize at least some truthful statements – a result the First Amendment forbids,” Millen wrote. “Second, even if the Act reaches only false statements, it makes impermissible content-based distinctions in selecting which speech to forbid.’ The Appeals Court ultimately found that the Statute’s ‘limitation to speech addressing only certain topics renders it facially unconstitutional.’”

Regardless of the U.S. District Court’s response to the latest motion, neither Stein nor any other plaintiff will face prosecution in connection with the challenged law.

Wake County District Attorney Lorrin Freeman’s office had been pursuing possible indictments against Stein and two colleagues. Those indictments would have been based on the challenged law.

Freeman announced the day after the 4th Circuit’s ruling that her office had closed its case against Stein.

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 on Aug. 23 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 on July 25. 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 would have allowed the statute of limitations to extend beyond the resolution of the legal dispute.

Freeman’s Feb. 9 announcement closed the door on any prosecution of Stein or his colleagues in connection with the “Survivor” ad.