Publisher's Note: This post appears here courtesy of the Carolina Journal. The author of this post is CJ Staff.
N.C. Attorney General Josh Stein argues the state election law he's challenging in federal court "threatens to chill speech at the heart of our democratic process."
Stein's lawyers make that argument in their latest filing with the 4th U.S. Circuit Court of Appeals.
The brief filed Tuesday is the first document in the case listing Michael Dreeben. He's the former U.S. deputy solicitor general who will make Stein's case during oral arguments scheduled on Dec. 6 in Richmond, Virginia.
Dreeben has argued more than 100 cases before the U.S. Supreme Court. He and two other members of the Washington, D.C.-based O'Melveny and Myers law firm have joined Stein's legal team. They join three attorneys from Raleigh-based Womble Bond Dickinson.
Stein is asking federal courts to strike down N.C. Gen. Stat. § 163-274(a)(9). The state law declares it unlawful, as a Class 2 misdemeanor, "For any person to publish or cause to be circulated derogatory reports with reference to any candidate in any primary or election, knowing such report to be false or in reckless disregard of its truth or falsity, when such report is calculated or intended to affect the chances of such candidate for nomination or election."
"The Statute is a content-based restriction on core political speech that lacks a compelling justification or narrowly tailored safeguards,"
according to Stein's latest brief. "It threatens to chill speech at the heart of our democratic process."
"The Supreme Court has never upheld such a law, and it cannot survive First Amendment review,"
Stein's lawyers added. "Yet Defendant contends that Garrison v. Louisiana establishes that any criminal libel statute is constitutional so long as it embodies an actual-malice standard and that no further scrutiny is required."
The U.S. Supreme Court's 1964 Garrison ruling dealt with a criminal defamation statute in Louisiana. Attorneys representing Wake County District Attorney Lorrin Freeman have cited the case while defending § 163-274(a)(9).
"That argument misreads Garrison, misinterprets the surrounding body of First Amendment law, and would not even justify the North Carolina Statute, which proscribes truthful derogatory speech,"
according to the brief. "And under strict scrutiny, Defendant has failed to carry her burden to show how the Statute logically serves its asserted interest or why less-restrictive alternatives are inadequate."
"No one welcomes false derogatory campaigning,"
Stein's lawyers wrote. "Indeed, Plaintiffs are hostile to it and responded to derogatory campaigning here as the American political process and Constitution expect: with counterspeech so that the electorate may decide."
"North Carolina also provides private civil remedies for damages to personal reputation,"
according to the brief. "But North Carolina's poorly tailored and outlier criminal Statute - rarely used and never effective - harms rather than helps the electoral process. Defendant's arguments to the contrary lack merit."
A 2-1 ruling from the 4th Circuit on Aug. 23 gave Stein an injunction against the law. The injunction blocked 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, chief of staff Seth Dearmin, and 2020 campaign manager Eric Stern.
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.
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.
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 initially faced an October 2022 deadline to proceed with charges stemming from that ad.
Thanks to the tolling agreement, though, the statute of limitations could extend beyond the resolution of the legal dispute.
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. Dreeben will represent Stein. Raleigh-based attorney Joseph Zeszotarski will represent Freeman.