Publisher's Note: This post appears here courtesy of the Carolina Journal. The author of this post is CJ Staff.
The 4th U.S. Circuit Court of Appeals will hear oral arguments on Dec. 6 in N.C. Attorney General Josh Stein's challenge of a state law against campaign lies. Stein hopes the federal courts will declare the law unconstitutional.
A 2-1 ruling from the 4th Circuit on Aug. 23 gave Stein and fellow plaintiffs an injunction against the law. The injunction blocked Wake County District Attorney Lorrin 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, his chief of staff, and his 2020 campaign manager.
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.
"Plaintiffs spend considerable energy arguing that the Stein Political Ad is not false, and is somehow 'corrective,'"
Zeszotarski wrote in the Oct. 11 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."
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 this month.
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.