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N.C. attorney general can’t be charged with crime over campaign ad — yet

The Washington Post logo The Washington Post 8/24/2022 Rachel Weiner
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The U.S. Court of Appeals for the 4th Circuit has temporarily blocked an investigation into North Carolina’s attorney general over a negative campaign ad, saying the state law he’s accused of violating is likely unconstitutional.

“Candidates running for office in North Carolina might well be chilled in their campaign speech by the sudden reanimation of a criminal libel law that has been dormant for nearly a century,” the court wrote.

The debate turns on a 1931 law in North Carolina that criminalized the publication of a “derogatory” campaign ad, “knowing such report to be false or in reckless disregard of its truth or falsity.”

A grand jury is investigating whether Democrat Josh Stein lied during his successful 2020 reelection campaign for attorney general in an ad blaming his Republican rival for a backlog of untested rape kits, according to court records.

Stein’s opponent, Forsyth County District Attorney Jim O’Neill, protested that police are responsible for processing rape kits — not prosecutors. He complained to the State Board of Elections, which found there was too much “ambiguity” to recommend charges. But the office of Wake County District Attorney Lorrin Freeman announced plans to propose an indictment to a grand jury this summer, according to the court filings, prompting Stein’s campaign to file a federal lawsuit to stop her.

Freeman, a Democrat, recused herself from the investigation but has defended it, telling one reporter that “the system needs to apply to all, and without bias.”

Stein maintained in court that the line from the ad — “O’Neill left 1,500 rape kits on a shelf” — was accurate, because prosecutors can encourage and assist police in clearing their evidence backlogs. (O’Neill had previously blamed the statewide backlog on Stein, who first became attorney general in 2017).

Even if the ad was false, Stein argued, it would be protected under current First Amendment doctrine. The U.S. Supreme Court in 2012 struck down a law criminalizing false claims of military honors, saying that “falsity alone may not suffice to bring the speech outside the First Amendment.”

A federal district court judge ruled against him earlier this month, saying that “the statute advances compelling state interests in protecting against fraud and libel in elections and is narrowly tailored to serve those interests.”

The appeals panel did not conclude whether the First Amendment would protect a law banning false and defamatory campaign advertising. But it ruled that the North Carolina law appears to unconstitutionally sweep in political attacks that are derogatory but factual.

“The First Amendment does not permit a State to criminalize ‘true statements,’ even those made with ‘actual malice,’ ” the court wrote.

Similar laws in Minnesota and Ohio have been struck down by appellate courts.

The ruling is an injunction pending appeal; the judges are scheduled to hear arguments on the case in December. Two judges, Obama appointee Albert Diaz and Biden appointee Toby J. Heytens, endorsed the injunction. In dissent, Trump appointee Allison Jones Rushing said she would let “North Carolina’s courts construe this untested statute in the normal course if it is actually enforced.”

An attorney for the plaintiffs, who also include the consultants who made the ad and the woman who starred in it, celebrated the ruling.

“We’re gratified that the court saw the merit in hitting the pause button ... so that they can consider the First Amendment implications of permitting criminal prosecutions for speech concerning important public issues,” attorney Pressly Millen said in an email.

An attorney for Freeman did not immediately return a request for comment.

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