A Democratic candidate for N.C. attorney general airs a television ad criticizing his Republican opponent’s legal record. The Republican complains that the ad is false and defamatory, but the Democrat ends up winning the election.
The winner pays no political price for knowingly spreading false information about his electoral adversary.
No, I’m not describing current A.G. Josh Stein. I’m talking instead about one of his most vocal defenders.
Gov. Roy Cooper complained to the News and Observer on Aug. 23 about the potential prosecution of Stein. Criminal charges would be linked to an alleged lie in a TV ad.
“The idea that the government can criminally prosecute a person for expressing a legitimate political opinion runs counter to the First Amendment and threatens anyone who wants to criticize a public official,” Cooper said in a prepared statement for the newspaper.
“This is an unprecedented repression of free speech that should trouble everyone,” Cooper added.
It’s interesting that Cooper would decide to make public statements about this issue.
Cooper preceded Stein as attorney general. To win the job as state government’s top lawyer in 2000, Cooper faced his own TV ad controversy. It focused on the truth or falsehood of claims about his opponent.
A week before the election, Cooper’s campaign unveiled a new ad. It accused Republican candidate Dan Boyce’s law firm of suing the state and charging taxpayers $28,000 per hour in legal fees. The ad contained multiple false statements.
Boyce did not work on the lawsuit referenced in the ad. His father, Gene, had worked on the suit before forming the Boyce and Isley law firm with Dan and two other partners. Gene Boyce, who was not the candidate for attorney general, also didn’t charge taxpayers $28,000 per hour.
As Carolina Journal reported in 2013, “The judge sets legal fees in class-action lawsuits, and the final payment to the attorneys was less than 10% of the amount Boyce initially requested and much lower than the amount alleged in the ad.”
The Boyce and Isley law firm notified the Cooper campaign about the misstatements on the second day the ad aired. The firm asked for an immediate retraction. Cooper ignored the request. The ad “ran at least three times a day for seven days on more than 20 television stations,” according to a legal complaint.
Cooper won the 2000 election by 136,000 votes out of 2.8 million total ballots cast. He got more good news five months later. That’s when a Wake County judge dismissed a defamation lawsuit Boyce and Isley had filed against the newly installed attorney general.
But Gene Boyce didn’t give up. He won a ruling against Cooper in the N.C. Court of Appeals in 2002, then watched the case travel through state and federal courts for more than a decade.
The case ended only in 2014 — after Cooper had won three re-elections as attorney general. That year Boyce secured a written apology from the future governor. Boyce and Cooper signed an agreement ending the civil action.
The agreement didn’t end Boyce’s pursuit of legal accountability for Cooper. In January 2016, Boyce filed a complaint against the N.C. State Bar. It argued that the bar should have investigated Cooper for professional misconduct in connection with the false campaign ad. The state Appeals Court resolved that case in 2018, nearly two years into Cooper’s first term in the executive mansion.
The Cooper and Stein cases involve significant differences. Gene Boyce and his law firm filed a civil lawsuit against Cooper, rather than lodging a complaint with the N.C. State Board of Elections based on N.C. Gen. Stat. § 163-274(a)(9). Stein has been battling possible prosecution under that statute.
That 91-year-old 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.”
While Cooper faced no criminal charges between 2000 and the 2002 statute of limitations, his campaign’s false statements about Dan Boyce could have opened the door to an investigation and potential prosecution under § 163-274(a)(9).
That doesn’t mean Cooper should have faced criminal charges 20 years ago. It doesn’t mean criminal prosecution makes sense for Stein today. This observer prefers to leave decisions about campaign truths and falsehoods to judges and juries, not government bureaucrats and criminal prosecutors.
Still, Cooper’s dubious history with truth in campaign advertising makes him a less-than-desirable spokesman on the topic of “legitimate political opinion.” One might even label his decision to say anything about Stein’s case a choice “that should trouble everyone.”
Mitch Kokai is senior political analyst for the John Locke Foundation.