Appeals panel blocks law’s use in NC campaign ad prosecution

Aug 23, 2022, 3:36 PM | Updated: 5:09 pm

RALEIGH. N.C. (AP) — A federal appeals court on Tuesday blocked a local North Carolina district attorney from prosecuting state Attorney General Josh Stein or anyone else for his 2020 campaign ad through a criminal libel law.

The majority of a three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, granted the request by Stein’s campaign committee and others associated with his campaign to prevent enforcement of the law while they sue to attempt to have the law overturned as unconstitutional.

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

Any formal charges could harm the political future of Stein, a Democrat and possible 2024 gubernatorial candidate.

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

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

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

The law’s language says a violation occurs when a person knows a derogatory report “to be false or in reckless disregard of its truth or falsity,” the order said. So the law could actually criminalize someone who makes a true statement, according to the judges.

“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 decade — harming the public’s interest in a robust campaign,” the order read. Heytens was nominated to the 4th Circuit by President Joe Biden, while Diaz was the choice of President Barack Obama.

The probe stems from a complaint that Stein’s Republican opponent in 2020, 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 while demanding that the board investigate a political ad that accused the Republican of letting more than a thousand rape kits go untested. O’Neill said the ad was false because police agencies, not prosecutors, are responsible for testing the kits.

Stein and his allies have said the ad is truthful and was designed to counter false statements that 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 campaign ad investigation in 2021, has said blocking enforcement of the law could scuttle any prosecution because the statute of limitations on the misdemeanor is two years.

But the majority’s order said that such an issue is at least to some extent “self-inflicted” because Freeman hasn’t adequately explained why it’s taken so long to bring charges.

The prevailing order directed that oral arguments on the appeal be held in December, which would likely be after the two-year prosecution window expires. It’s possible, however, that the window could be extended.

Circuit Judge Allison Rushing wrote a dissenting opinion, saying Stein’s campaign, the ad production company and the woman who appeared in the ad haven’t shown they are entitled to this “extraordinary relief.”

“The state will forever lose its opportunity to enforce the law” if the grand jury proceedings are stopped, wrote Rushing, a nominee of President Donald Trump.

Freeman said late Tuesday that she hadn’t yet read the opinion. The Stein 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 free speech in our state,” the campaign said.

Freeman, a Democrat, recused herself from the campaign ad investigation, leaving in to a senior assistant prosecutor.

Earlier Tuesday, Democratic Gov. Roy Cooper criticized the investigation and the potential prosecution as “an unprecedented repression of free speech.” Stein succeeded Cooper as attorney general in 2017.

Copyright © The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.


This photo provided by Robert Wilkes, owner of a house boat management company, shows smoke rising ...

Associated Press

Houseboats catch fire while docked at Wahweap Marina on Lake Powell

More than half a dozen house boats momentarily caught fire at a popular boating destination on the Utah-Arizona line on Friday.

2 days ago

File - Women work in a restaurant kitchen in Chicago, Thursday, March 23, 2023. On Friday, the U.S....

Associated Press

US hiring, unemployment jump in May and what that says about the economy

The nation’s employers stepped up their hiring in May, adding a robust 339,000 jobs, well above expectations.

2 days ago

(Pixabay Photo)...

Associated Press

Oath Keeper from Arizona sentenced for role in Jan. 6 riot at US Capitol

Edward Vallejo, a U.S. Army veteran from Phoenix, oversaw a “Quick Reaction Force” at a Virginia hotel that was prepared to deploy an arsenal of weapons into Washington if needed, authorities say.

3 days ago

FILE - U.S. Border Patrol Chief Raul Ortiz listens during a news conference, Jan. 5, 2023, in Washi...

Associated Press

US Border Patrol chief is retiring after seeing through end of Title 42 immigration restrictions

The head of the U.S. Border Patrol announced Tuesday that he was retiring, after seeing through a major policy shift that seeks to clamp down on illegal crossings at the U.S.-Mexico border following the end of Title 42 pandemic restrictions.

4 days ago

FILE - President Joe Biden talks with House Speaker Kevin McCarthy of Calif., on the House steps as...

Associated Press

House OKs debt ceiling bill to avoid default, sends Biden-McCarthy deal to Senate

The House approved a debt ceiling and budget cuts package late Wednesday, as President Joe Biden and Speaker Kevin McCarthy assembled a bipartisan coalition of centrist Democrats and Republicans against fierce conservative blowback and progressive dissent.

4 days ago

Sean Bickings (Family Photo via city of Tempe)...

Associated Press

Family of man who drowned last year in Tempe Town Lake files wrongful death lawsuit

The family of a man who drowned in Tempe Town Lake a year ago filed a wrongful death lawsuit against the city Wednesday, noting that its police department doesn't have a policy requiring officers to go into the water to save someone.

4 days ago

Sponsored Articles


OCD & Anxiety Treatment Center

How to identify the symptoms of 3 common anxiety disorders

Living with an anxiety disorder can be debilitating and cause significant stress for those who suffer from the condition.

(Photo: OCD & Anxiety Treatment Center)...

OCD & Anxiety Treatment Center

Here’s what you need to know about OCD and where to find help

It's fair to say that most people know what obsessive-compulsive spectrum disorders generally are, but there's a lot more information than meets the eye about a mental health diagnosis that affects about one in every 100 adults in the United States.

(Photo by Michael Matthey/picture alliance via Getty Images)...

Cox Communications

Valley Boys & Girls Club uses esports to help kids make healthy choices

KTAR’s Community Spotlight focuses on the Boys & Girls Club of the Valley and the work to incorporate esports into children's lives.

Appeals panel blocks law’s use in NC campaign ad prosecution