Comment The US Court of Appeals for the 4th Circuit has has temporarily blocked an investigation into North Carolina’s attorney general over a negative campaign ad, saying the state law it’s accused of violating is likely unconstitutional. “Candidates running for office in North Carolina may well be frozen in their campaign speeches by the sudden revival of a criminal libel law that has been dormant for nearly a century,” the court wrote. The debate turns to a 1931 law in North Carolina that criminalized the publication of a “disparaging” campaign advertisement, “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 re-election campaign for attorney general in an ad accusing his Republican opponent of stockpiling untested rape kits, court records show. 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 “vagueness” to recommend charges. But Wake County District Attorney Lorin Freeman’s office announced plans to recommend an indictment to a grand jury this summer, according to court records, prompting Stein’s campaign to file a federal lawsuit to stop it. Freeman, a Democrat, recused herself from the investigation but defended it, telling a reporter that “the system should apply to everyone and without bias.” Stein argued in court that the line from the advertisement — “O’Neill left 1,500 rape kits on a shelf” — was accurate because prosecutors can encourage and help police clear their backlog of evidence. (O’Neill previously blamed the statewide backlog on Stein, who first became attorney general in 2017). Even if the ad were false, Stein argued, it would still be protected under current First Amendment doctrine. The US Supreme Court in 2012 struck down a law criminalizing false claims of military honors, saying that “illusion alone may not be sufficient to bring the speech outside the First Amendment.” A federal district court judge ruled against it earlier this month, saying “the statute advances compelling state interests in protecting against election fraud and defamation and is narrowly tailored to serve those interests.” The appeals panel did not reach a conclusion on whether the First Amendment would protect a law that prohibits false and defamatory campaign advertising. However, he ruled that the North Carolina law appears to unconstitutionally sweep political attacks that are pejorative but factual. “The First Amendment does not permit a state to criminalize “truthful statements,” even those made with “actual malice,”” the court wrote. Similar laws in Minnesota and Ohio have been struck down by appellate courts. The decision is an order pending appeal. justices are scheduled to hear arguments in the case in December. Two justices, Obama appointee Albert Diaz and Biden appointee Toby Jaytens, approved the order. In contrast, Trump appointee Alison Jones Rushing said she would let “the North Carolina courts interpret this untested statute in the normal course, if indeed it is implemented.” A lawyer for the plaintiffs, who also include the consultants who made the ad and the woman who starred in it, celebrated the decision. “We are pleased that the court saw merit in hitting the pause button … so that it could consider the First Amendment implications of the criminal prosecution’s permission for speech on important public issues,” attorney Pressly Millen said in an email. An attorney for Freeman did not immediately return a request for comment.
