Appeals Panel Blocks Use of Law in Prosecuting NC Campaign Ads

Appeals Panel Blocks Use of Law in Prosecuting NC Campaign Ads

RALEIGH. NC (AP) — A federal appeals court on Tuesday blocked a local North Carolina prosecutor from suing state attorney general Josh Stein or anyone else for his 2020 campaign ad through a defamation law. criminal.

A majority of a three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, granted the request of Stein’s campaign committee and others associated with his campaign to stop law enforcement as they sue to try to overturn the law as unconstitutional.

The 2-1 decision came a day after a Wake County grand jury formally asked the Wake District Attorney’s office to file an indictment against Stein and two of his advisers or any of the three for jurors to consider. Wake County District Attorney Lorrin Freeman said Monday that this could have happened as early as next month.

Any formal accusations could jeopardize the political future of Stein, a Democrat and possible gubernatorial candidate in 2024.

The law, which dates back to at least 1931, makes it a misdemeanor to circulate “derogatory reports” about a candidate with the intent to jeopardize that candidate’s chances in the election.

Earlier this month, US District Judge Catherine Eagles refused to issue an injunction, saying the law was constitutionally permissible because it criminalized “false defamatory speech about public officials made with real malice.”

But Tuesday’s majority order — U.S. Circuit Judges Toby Heytens and Albert Diaz — says Stein’s campaign and other plaintiffs in the lawsuit are likely to succeed in their challenge that the law violates freedom of speech protections. expression of the First Amendment.

The language of the law says that a violation occurs when a person knows that a derogatory report “is false or in reckless disregard of its truth or falsity,” the order read. Therefore, the law could criminalize someone who makes a true statement, according to the judges.

“Candidates running for office in North Carolina may be silent in their campaign speech for the sudden reexamination of a criminal defamation law that has been dormant for nearly a decade – undermining the public’s interest in a robust campaign,” the order read. Heytens was nominated for the 4th Circuit by President Joe Biden, while Diaz was President Barack Obama’s pick.

The investigation stems from a complaint that Stein’s 2020 Republican opponent, Forsyth County District Attorney Jim O’Neill, filed with the State Board of Elections against Stein’s campaign.

O’Neill’s complaint cited the law as it required the council to investigate a political ad that accused the Republican of leaving more than 1,000 rape kits untested. O’Neill said the ad was false because law enforcement agencies, not prosecutors, are responsible for testing the kits.

Stein and his allies said the ad is true and was designed to counter false statements O’Neill made during the campaign that Stein had failed to act on more than 15,000 untested rape kits since becoming attorney general in 2017. .

A lawyer for Freeman, whose office took over the investigation of the 2021 campaign ad, said blocking law enforcement could ruin any lawsuit because the statute of limitations on the misdemeanor is two years.

But the majority order said such an issue is at least to some extent “self-inflicted” because Freeman has not adequately explained why it takes so long to file charges.

The prevailing order called for oral pleadings on the appeal to be held in December, which would likely be after the two-year prosecution window had expired. It is possible, however, that the window can be extended.

Judge Allison Rushing wrote a dissenting opinion, saying that Stein’s campaign, the ad producer and the woman who appeared in the ad had not shown they are entitled to this “extraordinary relief”.

“The state will forever lose the opportunity to enforce the law” if grand jury proceedings are stopped, wrote Rushing, Donald Trump’s presidential nominee.

Freeman said on Tuesday that he had not yet read the opinion. Stein’s campaign said in a statement that it was pleased with the delay.

“This law is 90 years old, has never been used against any candidate and undermines freedom of expression in our state,” the campaign said.

Freeman, a Democrat, declined to participate in the campaign ad investigation, leaving it to a senior assistant district attorney.

On Tuesday, Democratic Governor Roy Cooper criticized the investigation and possible indictment as “an unprecedented crackdown on free speech.” Stein succeeded Cooper as attorney general in 2017.

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