Attorney General Josh Stein has succeeded so far in his attack against a state law that criminalizes lies about political candidates.
Regardless of the merits of Stein’s case, his tactics have generated pushback. Filings at the U.S. District Court raise concerns about Stein’s approach.
The challenged law dates from 1931. N.C. Gen. Stat. Section 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.”
In other words, lying about a political candidate could lead to criminal charges.
Court filings suggest that Stein believed “enforcement action” against him appeared “imminent” under the law.
At issue is a television ad Stein ran during his closely contested 2020 re-election bid. In the ad, a Stein associate said that his general election opponent — Forsyth County District Attorney Jim O’Neill — had left 1,500 untested rape kits “on a shelf leaving rapists on the streets.” O’Neill cited the state law against campaign lies in complaining to the State Board of Elections.
Stein considers the law a “clear violation” of the U.S. Constitution’s First Amendment protection of free speech.
He never challenged the law during his seven years as a state senator. Nor did he lobby against it during the first five years of his tenure as North Carolina’s top lawyer.
Even now, when facing the prospect of prosecution under the law, he refused to take his case against state law to a state court.
Instead he opted for a federal case. He sued the Raleigh-based members of the N.C. State Board of Elections and the Raleigh-based Wake County district attorney. He didn’t file suit in Raleigh. Stein took his case further west.
Stein’s a Democrat. Each of the District Court judges in North Carolina’s Eastern District, including Raleigh, was appointed by a Republican president.
In contrast, the Middle District features two Barack Obama appointees along with colleagues placed on the bench by Republicans.
Stein chose the Middle District over the Eastern District. Now one of those Obama appointees, Judge Catherine Eagles, is overseeing Stein’s case.
Questions about the attorney general’s tactics extend beyond apparent forum shopping. Attorney Thomas Segars addressed other issues in a federal court filing for members of the State Board of Elections. That board has a 3-2 Democratic majority.
“Rather than address the specific factual circumstances giving rise to this action alone, the Plaintiffs ask this Court to declare an unabridged, First Amendment right for anyone to lie about candidates for office,” Segars wrote. “They also seek to enjoin the State Board of Elections from investigating such misconduct in derogation of the Board’s duty. The Plaintiffs’ requests overreach.”
Segars questioned Stein’s pursuit of a federal case. “A federal court’s assessment of whether a state statute is constitutional is a serious matter that ought to be determined, if at all, on a full record — not on an unnecessarily rushed motion for a temporary restraining order,” he wrote.
The state board urged Eagles to “abstain from exercising jurisdiction” over the case, given a 1941 federal court precedent known as Pullman. “Pullman abstention would be appropriate here because North Carolina should be permitted to interpret its own laws in the first instance, pursuant to its common-law tradition, in a manner that avoids doubt about its laws’ constitutionality,” Segars wrote.
Cutting through the legal language, Stein should have taken his constitutional challenge of state law to a state court.
Joseph Zeszotarski, the attorney representing Wake County D.A. Lorrin Freeman, labels Stein’s legal action “extraordinary” — “a request to a federal court … to enjoin a state district attorney from pursuing criminal investigation of potential violations of state law that occurred in 2020 and on which the statute of limitations is about to run.”
The disputed ad aired for the last time in mid-October 2020. Misdemeanor crimes face a two-year statute of limitations in North Carolina.
If Freeman doesn’t charge Stein or his fellow plaintiffs soon, time will expire for criminal prosecution.
Stein knew that a state elections board investigation “concluded more than one year ago” and that state investigators worked on the case “for many months.” “Yet only now, on the eve of the running of the statute of limitations, Plaintiffs seek ‘emergency’ relief,” Zeszotarski wrote.
Like the Democratic-majority state elections board, the Democrat Freeman agrees a federal court should abstain from the case. “Any argument regarding the constitutionality of the Statute can be addressed by the state court in any prosecution that may be brought,” Zeszotakrsi wrote.
Stein’s request for federal action “is not warranted and is unsupported by precedent,” Freeman’s attorney argued.
So far, Eagles has disagreed. She granted a temporary restraining order against Freeman last week. Another hearing is set for Thursday. Eagles could grant an injunction that would bar any action against Stein until the entire legal dispute is resolved.
Whether the disputed law stands or falls, Stein’s tactics remain questionable. One should expect healthier respect for standard legal proceedings from state government’s chief lawyer.
Mitch Kokai is senior political analyst for the John Locke Foundation.