It’s hard not to focus on the partisan political implications of N.C. Attorney General Josh Stein’s challenge of a state law against campaign lies.
Political observers consider Stein the most likely Democratic nominee for governor in 2024. If he ever faced criminal charges under the disputed law, his gubernatorial bid would face at least some degree of negative impact.
Yet Stein’s case presents distinct, important questions with implications that will last beyond 2024. Answering those questions requires us to look at more than whether Stein will win or lose.
Is the challenged law constitutional?
When Stein first announced on July 21 that he was filing suit in federal court, he argued that the state law violated the U.S. Constitution’s First Amendment protection of free speech.
N.C. Gen. Stat. § 163-274(a)(9), 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.”
Stein has focused on the fact that the law dates back to 1931. It has generated almost no discussion or debate in 90 years. Stein and his associates could face the first criminal charges under the statute if federal courts refuse to toss the law.
At first glance, U.S. District Judge Catherine Eagles determined that Stein had a good case. She granted him a temporary restraining order.
But “after more thorough briefing, additional research, and further consideration,” Eagles wrote, she changed her mind. Previous court precedents suggest the law might be written in a way that would survive a constitutional challenge.
Two of three judges on a 4th U.S. Circuit Court of Appeals panel disagreed. They gave Stein the injunction he requested to block enforcement of the disputed law.
The issue is far from settled.
Is the challenged law a good law?
Even if North Carolina’s criminal defamation statute proves to be constitutional, that doesn’t make it a good law.
Observers must resist the temptation to equate “constitutional” with “good” and “unconstitutional” with “bad.” Plenty of bad laws enacted in Washington, D.C., in recent years — Inflation Reduction Act, anyone? — nonetheless comply with the U.S. Constitution. On more rare occasions, an excellent policy idea proves unworkable because it runs afoul of our nation’s governing document.
In the case of § 163-274(a)(9), the intention seems fine. No one wants candidates or their surrogates to lie about the opposition.
Yet the line between exaggeration and falsehood is not always clear. This observer holds reservations about giving government bureaucrats power to declare statements true or false. Those concerns grow when bureaucrats and prosecutors can transform those declarations into criminal charges.
Who should decide the challenged law’s fate?
Stein’s lawsuit asks the federal courts to strike down North Carolina’s criminal defamation statute as unconstitutional. Court action to date suggests there’s no clear-cut justification for such action.
Eagles’ unwillingness to grant Stein an injunction suggests this issue might be better left to the political branches.
It’s a good bet that few people knew much about the challenged law before Stein filed suit. Now his case has generated plenty of attention about the issue of criminal libel in North Carolina.
The General Assembly could amend or repeal the law.
It’s unlikely that lawmakers will dive into the issue this year, with campaigns in full swing and the business of the annual short legislative session largely complete. But the future of § 163-274(a)(9) certainly could be on the table when a new legislature convenes in Raleigh in 2023.
Reformers seeking publicity about the issue could point to Stein’s case. The issue would be bound to attract attention from legislative watchers.
Should Stein be charged under the challenged law?
Even if the disputed law proves to be constitutionally sound, and even if policymakers ultimately believe that North Carolina should maintain a criminal libel law, the circumstances of Stein’s case might counsel against prosecution.
If he or his associates face criminal charges, the charges will result from a single statement in a 2020 television ad. A Stein supporter accused Republican challenger Jim O’Neill, a district attorney, of leaving “1,500 rape kits on a shelf leaving rapists on the streets.”
The statement is clearly inaccurate. O’Neill did not have possession of any rape kits. He could not leave them on a shelf.
But it’s not clear that the inaccurate statement amounts to the kind of campaign lie that should lead to a criminal charge.
For many observers, answers to the questions above are crystal clear. Some will applaud the answers that hurt Stein politically. Others will choose the answers that help Stein avoid political fallout.
The rest of us should set partisan considerations aside. We should search for the answers that work best for North Carolina today, in 2024, and beyond.
Mitch Kokai is senior political analyst for the John Locke Foundation.