Duke group backs Stein’s bid to throw out N.C. criminal libel law

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  • The Duke First Amendment Clinic is supporting N.C. Attorney General Josh Stein in his effort to have federal courts throw out a state criminal libel law.
  • A friend-of-the-court brief says the disputed law "was animated by the bitterness" of Democratic Party politics in the 1928 presidential campaign.

The Duke First Amendment Clinic is supporting N.C. Attorney General Josh Stein’s bid to have federal courts throw out North Carolina’s law criminalizing campaign lies.

The clinic filed a friend-of-the-court brief Tuesday in the 4th U.S. Circuit Court of Appeals. That’s where Stein is pursuing a case titled Grimmett v. Freeman.

Like Stein, the Duke group urges appellate judges to rule a 1931 state law unconstitutional. Such a ruling would reverse an earlier decision from U.S. District Judge Catherine Eagles.

Stein already has secured a victory in the case. A split 4th Circuit panel ruled 2-1 on Aug. 23 that Wake County District Attorney Lorrin Freeman could not proceed with criminal charges connected to the law. One day before that ruling, a grand jury had asked Freeman’s office to present indictments against Stein, his chief of staff, and his 2020 campaign manager.

The 4th Circuit is not scheduled to hear arguments in the case before December. The statute of limitations for charges in the case against Stein and his associates is likely to run out in October.

“The history of criminal libel statutes in general — and of the North Carolina statute in particular — lends support to the argument that the statute violates the First Amendment and should be ruled unconstitutional,” according to the Duke First Amendment Clinic’s brief.

“The Supreme Court has long recognized that robust discussion and debate about the qualifications of candidates is a form of political expression integral to our electoral systems and thus to the democratic form of government established by our Constitution,” clinic lawyers argued. “As such, electioneering and other forms of political speech are entitled to the highest protections afforded by the First Amendment.”

“Yet from its birth in the notorious Star Chamber of the Tudor kings, criminal libel law was conceived of and used as a tool to stifle political discussion and dissent,” the brief continued. “The history of criminal libel prosecutions in America attests to the danger of empowering government officials to use criminal sanctions against political rivals.”

“Politically motivated libel prosecutions are not unknown in North Carolina,” according to the clinic’s brief. “The North Carolina statute at issue in this case, N.C. Gen. Stat. § 163-274(a)(9), was enacted under circumstances suggesting that it was designed to quell disfavored political speech. This statute, and indeed all criminal libel laws, are fundamentally at odds with the contemporary philosophy and doctrine of the First Amendment.”

The disputed law 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 Duke group traces the 1931 law to a 1913 predecessor, introduced by a Guilford County state representative known as a “progressive of the Progressives.” Along with a ban on derogatory speech against political candidates, the law featured other “purported anti-corruption reforms,” such as financial reporting obligations for candidates, parties, and interest groups.

“Given its historical backdrop, the criminal libel statute reads less like a prophylactic against corruption in campaign spending and more like a weapon to be deployed against a political rival,” according to the brief.

The 1931 law itself “was animated by the bitterness of the Democratic campaign in the 1928 presidential election,” clinic lawyers wrote. N.C. Democrats who opposed their own party’s nominee, New York Gov. Alfred Smith, campaigned against him in the general election.

Smith’s loss to Republican Herbert Hoover “led to the promulgation” of the law at issue in Grimmett v. Freeman.

“The Democratic party … resurrected the 1913 law to ensure that they would have a libel statute to weaponize against their political enemies in the future,” according to the brief.

The brief labels § 163-274(a)(9) “an always dubious statute” that led to only one other prosecution in the years before the current dispute involving Stein.

The current legal 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.

O’Neill filed a complaint with the N.C. State Board of Elections, citing § 163-274(a)(9). The board investigated the issue and turned over its findings to Freeman’s office. The SBI also looked into the charges.

Stein filed a federal lawsuit against the disputed law hours before a prosecutor in Freeman’s office was scheduled to take the case to the grand jury. After initially granting Stein a temporary restraining order in the case, Eagles rejected the attorney general’s bid for a preliminary injunction against Freeman.

The Wake grand jury presented its request for indictments while Stein was pursuing his appeal at the 4th Circuit. The Appeals Court’s ruling blocked that legal proceeding from moving forward.