Judge extends order protecting Stein from prosecution to Tuesday

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  • A federal judge has extended until Tuesday her order blocking prosecution of N.C. Attorney General Josh Stein under a disputed 1931 state law.
  • The law creates a Class 2 Misdemeanor for people who lie about candidates for office during an election campaign.

A federal court order protecting N.C. Attorney General Josh Stein from prosecution under a state law against campaign lies has been extended to Tuesday. U.S. District Judge Catherine Eagles announced the extension during a hearing Thursday morning in Greensboro.

Eagles expects to make a decision about a preliminary injunction in the case by Tuesday. That decision would determine whether Wake County District Attorney Lorrin Freeman can proceed with charges against Stein connected to a disputed 2020 television campaign ad.

“In opening today’s hearing on Stein’s request for a preliminary injunction stopping Freeman from enforcing a law that criminalizes political speech, Judge Eagles said it was a closer question than she originally thought,” tweeted WBTV reporter Nick Ochsner, who attended the hearing.

“The motion for preliminary injunction remains under advisement,” according to an official record of Thursday’s court proceeding.

Stein is seeking an injunction that would protect him from prosecution for an indefinite period. An injunction could last throughout the legal proceedings connected to Stein’s courtroom challenge of the 1931 state law.

The law creates 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.”

Misdemeanor charges carry a two-year statute of limitations. The ad in question stopped airing in October 2020. A preliminary injunction could block any prosecution from taking place, even if the challenged law is eventually upheld.

Stein, the incumbent Democrat, faced Republican challenger Jim O’Neill in the 2020 general election for attorney general. O’Neill was Forsyth County’s district attorney. Stein won re-election by just 13,622 votes out of 5.4 million ballots cast.

Stein and O’Neill clashed during the campaign over accusations involving untested sexual assault evidence collection kits. Each accused the other of failing to do his job in dealing with the “rape kits.”

The challenger objected to a line in one Stein ad featuring Juliette Grimmett, a sexual assault victim policy strategist at Stein’s N.C. Justice Department. Grimmett criticized O’Neill’s work as district attorney.

“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 took his complaint to the N.C. State Board of Elections, citing the law against false campaign speech. The board investigated the complaint and turned its findings over to Freeman’s office in July 2021.

A prosecutor in Freeman’s office warned Stein on July 7 that the Wake D.A. was planning to present charges to a grand jury later in the month. Stein filed suit and secured the preliminary injunction from Eagles before the case reached the grand jury

Stein is asking the federal court to declare the law unconstitutional. He labels it a clear violation of First Amendment free-speech rights.

The latest court filing from Freeman challenged Stein’s claim. “[C]riminal defamation statutes (like the Statute here) are constitutional and not violative of the First Amendment, … so long as they contain a knowledge of falsity element, because they regulate speech that is not protected by the First Amendment,” wrote attorney Joseph Zeszotarski, who represents Freeman.

“[T]he Statute serves the compelling state interest of preventing ‘fraud and libel’ in an election,” Zeszotarski added. “It does so in a narrowly tailored fashion — it regulates only knowingly false ‘derogatory’ speech about a candidate, that is ‘circulated or intended to affect the chances of such candidate for nomination or election.’ This statute is North Carolina’s statutory defense against knowingly false and derogatory statements about a candidate intended to affect the candidate’s electoral chances.”

“In today’s day and time, the goal of preventing knowingly false and derogatory statements from being made in the electoral context is more important than ever,” according to the Wake D.A.’s argument. “Recent events only confirm this point. The Statute is narrowly tailored to achieve
that compelling goal, and is North Carolina’s statutory defense against that evil.”

Editor’s note: This story was updated at 12:30 p.m. with new details.