State legislators face plenty of pressing issues this year: the budget, election maps, education issues, health care access.
But they could squeeze in another item that shouldn’t take much time or effort. It would correct a mistake made more than 90 years ago.
State lawmakers can repeal N.C. General Statute § 163-274(a)(9).
Few people knew about the law before July 2022. That’s when N.C. Attorney General Josh Stein, a Democrat, filed a federal lawsuit. Stein asked the courts to strike down 163-274(a)(9) as unconstitutional.
Because of Stein’s lawsuit, the N.C. political world learned that Wake County District Attorney Lorrin Freeman, also a Democrat, was preparing to bring criminal charges against Stein and associates. Those charges would have been tied to the disputed law.
It declares 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.”
Freeman’s office pursued a case that Stein violated the law during his 2020 re-election campaign. He aired a television ad claiming that the Republican challenger, Forsyth County’s district attorney, had left 1,500 rape kits on a shelf — untested — allowing rapists to roam free.
A grand jury asked Freeman’s office to present indictments against Stein, his chief of staff, and his campaign manager.
Now, more than seven months after Stein filed suit, the case has ended.
A unanimous panel of the 4th U.S. Circuit Court of Appeals ruled on Feb. 8 that the contested law likely violates the U.S. Constitution. One day after that decision, Freeman announced she had closed the case against Stein.
It’s unclear whether Stein will proceed with his suit in federal court. Regardless of the courtroom action, 163-274(a)(9) remains on North Carolina’s law books.
But the legislature could repeal it. The law’s history could encourage lawmakers to take that step.
The controversial law dates back to 1931. But its story actually began a couple of decades earlier.
“North Carolina enacted the precursor to the current statute, N.C. Gen. Stat. § 163-274(a)(9), in 1913, in circumstances suggesting that it was intended to chill the speech of rivalrous political factions,” according to a legal brief from Duke University’s First Amendment Clinic, filed last October. “The 1913 statute, codified in the Consolidated Statutes in 1919, had its origins in North Carolina’s Progressive movement of the early 20th [century].”
“In 1912, the progressive faction of the Democratic party had attempted (and failed) to oust the party leader, U.S. Senator F.M. Simmons, in a divisive and bitter primary,” according to the brief. “Josephus Daniels, editor of the News & Observer and a member of the national Democratic Executive Committee who frequently supported progressive causes, lamented the lavish campaign spending practices that contributed to Simmons’ victory over progressive opposition.”
“The 1913 law was introduced by Rep. E.J. Justice of Guilford County, who was described as a ‘progressive of the Progressives,’” the brief continued. “It included a range of purported anti-corruption reforms, including financial reporting obligations for candidates, political parties, and non-party interest groups, and the criminalization of derogatory comments made about candidates for office.”
The Duke brief challenged this “progressive” idea. “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.”
The 1931 statute, based on its 1913 precedent, “was animated by the bitterness of the Democratic campaign in the 1928 presidential election,” according to the Duke brief.
When Democrats nominated New York Gov. Alfred Smith for president, many North Carolinians objected. Smith, “an urban, Irish-American Catholic who opposed Prohibition, … faced vicious opposition from within his own party in North Carolina.”
The anti-Smith faction described his supporters as the “worst forces of hell in the land,” comparing them to “gangsters,” “dope fiends,” and “white slavers.” The anti-Smith faction within the Democratic Party spent $600,000 in today’s dollars to defeat him.
“Governor Smith’s loss in the state led to the promulgation of Section 163-274(a)(9),” according to the Duke brief. “On February 25, 1931, Democratic State Representative Ewing introduced a bill — which became known as the ‘Corrupt Practices Act’ — to restrict the actions of groups like the Anti-Smith Democratic Committee in future elections.”
“Local commentators explained that the bill was introduced ‘to forever prevent a recurrence of what happened in 1928.’” Lawmakers enacted the new law after “one-half minute of explanation.”
“Once again, the historical backdrop belies the placement of Section 163-274(a)(9) within a statute purportedly intended to prevent corrupt political practices,” the Duke First Amendment Clinic concludes. “The Democratic party — bitter to have lost to F.M. Simmons and his rogue machine within the party — resurrected the 1913 law to ensure that they would have a libel statute to weaponize against their political enemies in the future.”
Until Stein filed his lawsuit, Section 163-274(a)(9) sat in obscurity within the state’s lawbooks. With the recent 4th Circuit ruling, it’s unlikely the law ever could be enforced again.
Lawmakers could ensure it goes away. By repealing the statute, they also could stamp out an unsavory piece of “progressive” political history.
Mitch Kokai is senior political analyst for the John Locke Foundation.