Stein, Earls lawsuits could pave way for good-government reforms

Two North Carolina Democrats holding prominent statewide elected offices dropped federal free-speech lawsuits within the past year.

The legal battles have ended for Attorney General Josh Stein and state Supreme Court Justice Anita Earls. But important issues linked to their free-speech complaints remain unresolved. It would be a shame if their court cases had no impact on public policy.

Stein filed his federal complaint first. During his 2020 re-election campaign, the attorney general ran a television ad accusing Republican opponent Jim O’Neill of leaving “1,500 rape kits on a shelf, leaving rapists on the streets.”

O’Neill filed a complaint with the State Board of Elections. He cited a 1931 state law. It created a misdemeanor crime “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.”

When the Wake County district attorney’s office warned Stein in July 2022 that it was taking a case to the grand jury, the attorney general sought federal help. He secured a February 2023 injunction from the 4th US Circuit Court of Appeals, then dropped his suit in April. By that time, it was clear that the Wake DA would not proceed with charges.

Stein won. But the challenged law remains on the books.

The Duke First Amendment Clinic filed an October 2022 brief in Stein’s case. It detailed the law’s dubious history. A 1913 precursor stemmed from “progressive” Democrats’ anger that they could not unseat a party leader in a “divisive and bitter primary.” The current version of the law “was animated by the bitterness of the Democratic campaign in the 1928 presidential election,” according to the Duke brief.

Now, more than nine decades later, state lawmakers should consider repealing the criminal libel law. It shouldn’t be difficult to rally a Republican-led General Assembly to challenge a misguided relic of the state’s “progressive” political past.

Candidates worried about campaign lies would continue to have the option of filing civil suits. But they could no longer enlist the government to criminalize political speech during a heated campaign.

Earls’ suit might also be worthy of legislative review, though it’s possible the most appropriate reform could take place entirely within the judicial branch.

The first-term state Supreme Court justice challenged in federal court last year an investigation of her conduct by the North Carolina Judicial Standards Commission. An anonymous complaint to the commission targeted published comments from Earls about the court system’s operations.

The commission’s task involved looking into whether Earls’ statements complied with the state Code of Judicial Conduct. That code bars judges from making statements that could raise doubts about the judicial system’s integrity.

Judicial standards investigations usually remain secret. Most probes end in dismissed complaints. The public rarely learns that a complaint has been filed. Yet Earls argued to the federal courts that the threat of an investigation “chilled” her speech on matters of public interest.

Unlike Stein, Earls never secured a court win. Both a trial judge and the 4th Circuit rejected her attempts to secure an injunction blocking the investigation.

The judicial standards group’s work is “narrowly tailored to serve the State’s interest in maintaining the integrity and the appearance of integrity of the judiciary,” US District Judge William Osteen declared. The process “does not affect the judge’s public image or daily responsibilities” unless a complaint moves beyond its initial stage.

The commission conducted its work as planned and eventually dismissed the complaint. Only then did Earls end her legal action.

The matter could die with Earls dropping her case. But there’s an argument to be made for updating rules about what she, fellow Supreme Court justices, and other judges in North Carolina can say with impunity. Increased clarity would reduce the potential chilling effect.

That’s especially true for a state like North Carolina that elects its judges and justices. It makes sense to bar them from speaking about current cases, or even cases that might appear before them at a future date. But the balance between freedom and restriction should tilt toward freedom.

It’s good for voters to know what Earls, Republican Chief Justice Paul Newby, and their colleagues think about the judicial system and their roles within that system.

Observers can take that information into account when they weigh the merits of a court ruling. Voters can use that information to help make more informed decisions at the ballot box.

Mitch Kokai is senior political analyst for the John Locke Foundation.