Federal appellate judges question N.C. criminal libel law targeting Stein

A three-judge U.S. Appeals Court panel spelled out its concerns Tuesday about a state criminal libel law that could be used against N.C. Attorney General Josh Stein.

The same panel issued a 2-1 ruling in August that blocked the Wake County district attorney from enforcing the law against Stein.

The 4th Circuit judges issued no ruling after hearing oral arguments in Richmond in a lawsuit challenging the statute. But their questions during Tuesday’s 45-minute hearing suggested they have concerns about the law’s constitutionality.

Stein and fellow plaintiffs in the case titled Grimmett v. Freeman want the judges to declare the 1931 state law unconstitutional. The statute is designed to criminalize lies about political candidates during an election campaign.

Judge Toby Heytens, appointed to the 4th Circuit by President Biden, questioned the law’s focus.

“Under this statute, I can completely lie about my own background,” Heytens said. “I can falsely claim to be a Medal of Honor winner. I could Photoshop a photo that puts me with someone I think voters might really like. … I could lie in a thousand different ways that benefit me, and the statute has nothing to say about that.”

“I could also lie about a tremendous number of issues of tremendous public importance that are not literally about my opponent, but every reasonable person is going to understand are about my opponent,” Heytens added. “Why isn’t that a problem, that the statute only seems to criminalize saying intentionally really mean things about your opponent, but you can in the context of an election lie about literally anything else and the statute doesn’t care?”

Judge Albert Diaz, appointed by former President Barack Obama, questioned the law’s effectiveness.

“One of the objectives, you say, of the statute is to protect the electorate and ensure that accurate information is disseminated to those who have to make a decision with respect to candidates,” Diaz said to the lawyer defending the law. “But how does this statute really do anything in that regard? The criminal justice system seems really ill-suited to achieving that end.”

“Isn’t counter-speech the more effective way to go here?” Diaz asked.

Judge Allison Jones Rushing, appointed by former President Donald Trump, also questioned the value of using criminal law to combat campaign lies.

“How does criminal liability solve that?” Rushing asked. “I guess your argument is it’s chilling. It chills you enough that you won’t say the false thing. … Maybe you can’t solve every false, defamatory statement about a candidate, but speaking immediately after it is your best chance rather than a lawsuit two years later holding someone criminally liable.”

Former U.S. Deputy Solicitor General Michael Dreeben represented Stein before the 4th Circuit judges.”The interest of the states and of the United States in campaigns that are free from defamatory, derogatory, false campaigning is apparent, but the necessity of a criminal statute to enforce that is not,” Dreeben said.

“The statutes in operation tend to chill political speech, skew the democratic process, and interfere with the very interests that the statute is purportedly designed to serve,” he added.

Stein is asking the 4th Circuit to reverse a ruling from U.S. District Court, where Judge Catherine Eagles ruled that the N.C. attorney general was unlikely to win his case. Eagles refused to block enforcement of the law, and potential prosecution of Stein, as the case proceeds to trial.

Rushing was the only judge to question whether Stein needs an injunction as the case moves forward.

“Usually in these cases, you have ‘I want to say X today and tomorrow and next month, and unless there’s an injunction I’m going to be prevented from saying X.’ But that’s not the argument here. ‘X’ was said two years ago. Nobody wants to say it again. They don’t want to be indicted, which the Supreme Court has told us is not irreparable harm.”  

Joseph Zeszotarski defended the law in his role as the attorney representing Wake County District Attorney Lorrin Freeman. Freeman is the defendant in the federal case. Her office has been pursuing criminal charges against Stein and two colleagues based on the disputed law.

Zeszotarski argued that the law complies with federal court precedents. He reminded federal appellate judges that Stein is asking them to take the unusual step of striking down a state law.

“The plaintiffs are asking the court to substitute its judgment about the efficacy of this statute for the legislature’s,” he said. “This law is the legislature’s law. It’s the will of the people of North Carolina. They’re asking a federal court to come in and tell the state legislature that it cannot have this law.”

Stein wants federal courts to declare N.C. Gen. Stat. § 163-274(a)(9) unconstitutional. The state 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.”

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. Diaz and Heytens supported the injunction. Rushing dissented.

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 statute of limitations in the case was scheduled to run out in October. But an Oct. 11 filing from Freeman’s office states that 4th Circuit judges issued their injunction “upon Plaintiffs’ consent to enter a tolling agreement as to enforcement of the Statute against them.” A tolling agreement would stop the clock on the statute of limitations until the case is resolved.

The controversy stems 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, N.C. Gen. Stat. § 163-274(a)(9). 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 this summer with possible charges connected to the ad.

Stein initially won a temporary restraining order in the case from 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 a pending deadline to proceed with charges stemming from that ad.

Thanks to the tolling agreement, though, the statute of limitations could extend beyond the resolution of the legal dispute.

There is no deadline for a ruling from the 4th Circuit panel.