Stein’s lawyer downplays potential impact of New Hampshire criminal libel ruling

Michael Dreeben (image from

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  • N.C. Attorney General Josh Stein's lawyer argues that a recent U.S. appellate ruling from New Hampshire should have no impact on Stein's challenge of a state criminal libel law.
  • Former U.S. Deputy Solicitor General Michael Dreeben will argue on Stein's behalf at the 4th U.S. Circuit Court of Appeals on Dec. 6.

The 1st U.S. Circuit Court of Appeals ruled this month that New Hampshire’s criminal libel law does not violate the First Amendment. But lawyers representing N.C. Attorney General Josh Stein argue that New Hampshire case should not hurt Stein’s criminal libel challenge at the 4th Circuit.

Stein is targetng a 1931 N.C. law that criminalizes lies about political candidates. A 4th Circuit panel will hear oral arguments in the case on Dec. 6.

Michael Dreeben, the former U.S. deputy solicitor general representing Stein and other plaintiffs at the 4th Circuit, filed a new document in the case Wednesday. It references the 1st Circuit’s decision in Frese v. Formella. Appellate judges in that case affirmed a lower court ruling. They upheld New Hampshire’s law against criminal libel.

“Frese offers no support to Defendant” in Stein’s case, Dreeben wrote. The N.C. case is known officially as Grimmett v. Freeman. The defendant is Wake County District Attorney Lorrin Freeman. Her office has been pursuing prosecution of Stein and two colleagues under the disputed N.C. criminal libel law.

One dispute involves a 1964 U.S. Supreme Court precedent titled Garrison v. Louisiana. While striking down a state criminal libel law, the unanimous court suggested in Garrison that a more narrowly tailored criminal libel law could withstand constitutional scrutiny.

The plaintiff in Frese conceded that the Garrison precedent applied to his case, Dreeben explained. “As a result, the First Circuit had no occasion to conduct a thorough analysis of that decision.”

Judges in the 1st Circuit did not address the impact of another major 1964 U.S. Supreme Court First Amendment decision in New York Times v. Sullivan. Nor did those judges consider other cases since 1964 that “have undermined the broad reading of Garrison advanced by Defendant here.”

“In any event, the First Circuit did not address a statute like North Carolina’s, which reaches and prohibits truthful derogatory speech and selectively focuses on candidate-related statements,” Dreeben wrote. “The First Circuit’s decision thus does not support the constitutionality of
North Carolina’s statute.”

Dreeben joined Stein’s case last month. He will argue on behalf of the N.C. attorney general on Dec. 6. Dreeben’s legal career includes more than 100 oral arguments at the U.S. Supreme Court.

Stein wants federal courts to declare N.C. Gen. Stat. § 163-274(a)(9) unconstitutional. The state law 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.”

A 2-1 ruling from the 4th Circuit on Aug. 23 gave Stein an injunction against the law. The injunction blocked Freeman’s office from pursuing criminal charges against Stein and two colleagues.

The 4th Circuit injunction arrived one day after the Wake grand jury asked the D.A.’s office to present indictments against Stein, chief of staff Seth Dearmin, and 2020 campaign manager Eric Stern.

The statute of limitations in the case was scheduled to run out in October. But an Oct. 11 filing from Freeman’s office states that 4th Circuit judges issued their injunction “upon Plaintiffs’ consent to enter a tolling agreement as to enforcement of the Statute against them.” A tolling agreement would stop the clock on the statute of limitations until the case is resolved.

The controversy stems from Stein’s 2020 re-election campaign. Stein, a Democrat, defeated Republican challenger Jim O’Neill, the Forsyth County district attorney. Stein’s winning margin was just 13,622 votes out of 5.4 million ballots cast.

Stein and O’Neill criticized each other during the campaign over the issue of untested rape kits. After O’Neill accused Stein of allowing thousands of rape kits to remain untested and “sitting on a shelf,” Stein responded with a TV ad titled “Survivor.”

The ad featured Juliette Grimmett, a sexual assault survivor who worked for Stein in the N.C. Justice Department. At one point in the ad, Grimmett said, “When I learned that Jim O’Neill left 1,500 rape kits on a shelf leaving rapists on the streets, I had to speak out.”

O’Neill filed a complaint with the State Board of Elections, calling the ad false and defamatory. O’Neill cited the now-disputed state law, N.C. Gen. Stat. § 163-274(a)(9). A state elections board investigator looked into the case and turned over findings to the Wake D.A. in 2021.

Freeman had recused herself from the case, turning it over to prosecutor David Saacks. Saacks sought a more thorough investigation from the SBI. Based on that work, the Wake D.A.’s office proceeded to the grand jury this summer with possible charges connected to the ad.

Stein initially won a temporary restraining order in the case from U.S. District Judge Catherine Eagles on July 25. But Eagles later reassessed her ruling and refused to grant Stein an injunction.

The ”Survivor” ad aired from August through October 2020. Misdemeanor charges in North Carolina come with a two-year statute of limitations. That means that Freeman’s office faced a pending deadline to proceed with charges stemming from that ad.

Thanks to the tolling agreement, though, the statute of limitations could extend beyond the resolution of the legal dispute.

Stein’s initial 4th Circuit victory came from Judges Toby Heytens, an appointee of President Biden, and Albert Diaz, an Obama appointee. Judge Allison Jones Rushing, a Trump appointee, dissented from the Aug. 23 decision granting Stein’s injunction.

The identity of the three-judge panel hearing the case on Dec. 6 will not be disclosed until that morning, according to the 4th Circuit’s notification of the hearing. Each side will have 20 minutes to make its arguments. Raleigh attorney Joseph Zeszotarski is scheduled to argue on Freeman’s behalf.