Wake D.A.’s latest 4th Circuit filing defends N.C. law against campaign lies

Wake County District Attorney Lorrin Freeman addresses a John Locke Foundation audience in March 2017.

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  • A new legal brief from Wake County District Attorney Lorrin Freeman's office defends North Carolina's 1931 law against campaign lies.
  • Freeman and N.C. Attorney General Josh Stein are battling in the 4th Circuit Court of Appeals over a potential prosecution tied to the disputed state law.
  • Appellate judges are scheduled to hear arguments in the case as early as Dec. 6.

Wake County District Attorney Lorrin Freeman defends North Carolina’s law against campaign lies. It’s the latest round of a legal battle with state Attorney General Josh Stein in the federal courts.

“Plaintiffs (an elected official, his campaign, and others associated with his campaign) contend that the First Amendment gives a politician a constitutional right to knowingly lie to the public about his political opponent to gain an advantage in an election, such that a State cannot
bar a politician from doing so by statute. The district court correctly rejected Plaintiffs’ claim,” wrote attorney Joseph Zeszotarski, in a brief filed Tuesday in the 4th U.S. Circuit Court of Appeals. Zeszotarski represents Freeman’s office in a case titled Grimmett v. Freeman.

Stein and people associated with his 2020 election campaign are battling Freeman’s efforts to prosecute alleged crimes connected to a 1931 state law. The law creates a misdemeanor crime for people who lie about election candidates.

A Wake County grand jury had asked Freeman’s office on Aug. 22 to present indictments against Stein, his chief of staff, and his campaign manager in connection with a 2020 television ad.

A 2-1 ruling the following day from a 4th Circuit panel blocked that criminal process from moving forward.

“The United States Supreme Court has made clear that state criminal laws prohibiting false and defamatory statements in political campaigns are and continue to be constitutional, where as here the statute requires proof of actual malice,” Zeszotarski wrote in Tuesday’s brief. “The
Constitution does not give politicians a ‘right to lie’ to the public about their opponents to gain an advantage in their campaigns. The narrowly drawn North Carolina statute at issue in this case is constitutional on its face.”

Stein’s suit asks 4th Circuit judges to declare the disputed law unconstitutional.

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 board investigator looked into the case and turned over findings to the Wake D.A.

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 with possible charges connected to the ad.

“Plaintiffs spend considerable energy arguing that the Stein Political Ad is not false, and is somehow ‘corrective,’” Zeszotarski wrote in the brief for Freeman’s office. “To the contrary, the evidence collected during the course of the criminal investigation of the Stein Political Ad tends to show that the ad is false, and that Stein and others associated with his campaign knew it was false.”

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.

“Putting Plaintiffs’ factual hyperbole aside, nothing they raise on appeal is new law or argument that contradicts the district court’s sound reasoning,” Zeszotarski wrote. “To the contrary, each of the points advanced by Plaintiffs — the alleged overbreadth, underinclusiveness, and lack of narrow tailoring of the Statute — are no basis to invalidate a statute that ‘has a plainly legitimate sweep.’ The statute, read as a whole, regulates only materially false and defamatory speech. This type of speech has long been recognized as not protected by the First Amendment, even in the political context.”

“The statute at issue affects a category of speech — false and defamatory political speech made with actual malice — that is not protected by the First Amendment,” the brief added. “The statute is narrowly tailored to address compelling state interests. For those reasons, the statute should be found facially constitutional.”

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 deadline to proceed with charges stemming from that ad.

The 4th Circuit is not scheduled to hear arguments in the case until Dec. 6 at the earliest. But that doesn’t necessarily mean Stein and his associates have run out the clock for potential prosecution.

Appellate judges issued an injunction on Aug. 23 “upon Plaintiffs’ consent to enter a tolling agreement as to enforcement of the Statute against them,” according to Zeszotarski’s brief.

A tolling agreement means all parties would agree to stop the clock on the statute of limitations as the case proceeds through the courts.