Josh Stein wants federal courts to kill a relic of North Carolina’s progressive political past.
It’s an interesting choice for a Democratic politician who is likely to need progressives’ support soon. Most political observers expect Stein to run for governor in 2024.
North Carolina’s current attorney general is asking the 4th U.S. Circuit Court of Appeals to toss out a state law. It creates criminal penalties for lies connected to political contests.
The A.G’s campaign against the law has emphasized its 90-year-old age. Stein’s lawyers also note that enforcement of the law has been virtually nonexistent for decades.
Yet Stein’s legal action has focused little attention on the law’s origins. We can thank a group from Duke University for filling in the gaps.
The Duke First Amendment Clinic filed a friend-of-the-court brief on Sept. 27 with the 4th Circuit. The clinic supports Stein’s campaign to have federal courts declare the state law unconstitutional.
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.”
That law dates back to 1931, but the Duke group turns the clock back even further.
“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,” the Duke brief asserted. “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 clinic challenged the notion that prosecuting against criminal libel amounted to a worthwhile “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 the 1913 law, “was animated by the bitterness of the Democratic campaign in the 1928 presidential election,” according to the Duke brief.
When the Democratic Party nominated New York Gov. Alfred Smith as its presidential candidate, many N.C. Democrats 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 the equivalent of $600,000 in current 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 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.”
Times have changed since 1931. Today’s progressives are not those who operated in N.C. politics in the early 20th century.
But the progressive wing of the Democratic Party is still the group most likely to enlist government to enforce its preferred election restrictions — from campaign finance limits to anti-“disinformation” operations.
If Josh Stein is successful in having § 163-274(a)(9) declared unconstitutional, he will help to dismantle a piece of North Carolina’s progressive history. It would be a notable achievement for a Democratic politician in 2022.
Mitch Kokai is senior political analyst for the John Locke Foundation.