The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Grimmett, Ralston Lapp Guinn Media Group & Josh Stein for Attorney General Campaign v. Circosta (M.D.N.C.), filed yesterday, seeks to invalidate N.C. Gen. Stat. § 163-274(a)(9), which makes it a crime:
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.
Note that this is limited to lies about candidates, so it's similar to a criminal libel statute, albeit one enforced through the N.C. State Board of Elections rather than through the normal criminal justice process; according to the News & Observer (Will Doran), Attorney General Stein claims that the law "is nearly a century old and yet no one had been prosecuted under it," at least until the complaint against his campaign.
Here's the argument supporting the request for a temporary restraining order against the enforcement of the statute (I also plan on posting the response, when it's filed):
After U.S. v. Alvarez, courts are required to consider First Amendment challenges recognizing that even false speech is entitled to constitutional protection, particularly in the context of political speech. Thus, in Susan B. Anthony List v. Driehaus (6th Cir. 2016), the Sixth Circuit …, following Alvarez, ultimately struck down the Ohio laws [that are similar to the N.C. law] as "content-based restrictions that burden core protected political speech and [which] are not narrowly tailored to achieve the state's interest."
In so holding, the Sixth Circuit found that "Ohio's political false-statements laws target speech at the core of First Amendment protections—political speech." The laws reached "not only defamatory and fraudulent remarks, but all false speech regarding a political candidate, even that which may not be material, negative, defamatory, or libelous." … [T]he court found that the Ohio laws did not "pass constitutional muster because they are not narrowly tailored in their (1) timing, (2) lack of a screening process for frivolous complaints, (3) application to non-material statements, (4) application to commercial intermediaries, and (5) over-inclusiveness and under-inclusiveness."
With regard to timing, the court found that there was "no guarantee the administrative or criminal proceedings will conclude before the election or within time for the candidate's campaign to recover from any false information that was disseminated." The frivolous complaint issue arose from the fact that they were not restricted "to state officials who are constrained by explicit guidelines or ethical obligations," but could be made by "political opponents." The failure of the statute to facially exclude non-material falsehoods, rendered the statute "not narrowly tailored to preserve fair elections." The court also found fault that the statute applied "not only to the speaker of the false statement," but also potentially to "commercial intermediaries." Finally, the Sixth Circuit found the law "both over-inclusive and underinclusive," by virtue of the fact that it could damage an accused campaign while at the same time failing to timely penalize an offender.
In 281 Care Committee v. Arneson (8th Cir. 2014), the Eighth Circuit found a similar Minnesota law unconstitutional on nearly identical grounds, finding that "a credible threat of prosecution" led to an impermissible chilling of political speech. The following year, the Supreme Judicial Court of Massachusetts struck down that State's cognate law using a strict-scrutiny analysis and rejecting the State's "attempt to shoehorn [the challenged law] into the exception for defamatory speech." Commonwealth v. Lucas (Mass. 2015). (Even before Alvarez, in 2007, the Supreme Court of Washington struck down its version of the law in Rickert v. State (Wash. 2007), finding that the "mere threat of such a process will chill political speech.") …
The factual background, according to the plaintiffs:
In 2020, Josh Stein, the incumbent, and Jim O'Neil, Forsyth County District Attorney, were the candidates for the Office of North Carolina Attorney General. The underlying dispute in this action concerns the handling of a backlog of untested rape kits in North Carolina….
After being elected Attorney General, in April 2017, Mr. Stein enlisted the help of the State's district attorneys, including Mr. O'Neill, to determine the number of untested kits in their prosecutorial districts. They were asked to send a letter to each law enforcement agency in their jurisdiction, tally the results, and then notify the State Crime Lab of that number. Later that year, the Department of Justice commissioned a state-wide inventory concerning that backlog.
After the study concluded, the Department of Justice issued a Report indicating that there was a statewide backlog of some 15,000 untested rape kits. Attorney General Stein thereafter secured authorization from the General Assembly for and created a rape-kit tracking system and a working group to develop a protocol for testing the as-yet untested kits, as well as all rape kits going forward. The Attorney General also secured a total of $4 million in additional funding to accelerate the outsourcing of the old rape kits for testing. Attorney General Stein and his team then drafted the Survivor Act which secured $6 million in state funding to further outsource testing and to institute requirements so that no backlog will develop in the future. The General Assembly enacted the Survivor Act and the Governor signed it into law in September 2019.
Notwithstanding that work done by Attorney General Stein on an issue that had been largely ignored by others, O'Neill, on October 7, 2019, issued a statement claiming that the Attorney General Stein "has stood on the sidelines for almost his entire term while more than 15,000 untested rape kits have sat on the shelves of the lab that Stein is responsible for, collecting dust." He repeated that statement on at least two reported occasions. As indicated by the Report, however, the untested rape kits were not in the custody of the State Crime Lab but instead actually located at local law enforcement agencies across the state (including over 1,500—10% of the state's entire backlog—within O'Neill's prosecutorial district).
O'Neill also made a statement regarding his own putative work on the subject of rape kits. On September 20, 2019, he issued a statement condemning Attorney General Stein stating that "I have been fighting & trying to give a voice to these victims for the last 23 y[ea]rs while you gave a 23 sec[ond] press conference." He also declared that eliminating the backlog was his "number one priority." …
In order to answer the false accusations of its opponent and inform the electorate of what it believed to be relevant facts for the election, the Stein Campaign publicly challenged those accusations with speech of its own. The Campaign produced Survivor, a corrective political advertisement, in the summer of 2020. Ralston Lapp was the producer of that advertisement.
Ms. Grimmett personally appeared in the political advertisement and made the following statement, drawing a contrast between efforts made by Attorney General Stein to develop and execute on a strategy to address the untested rape kits and Mr. O'Neill's failure to engage in similar efforts within his own jurisdiction:
As a survivor of sexual assault that means a lot to me and 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.
Prior to producing Survivor, Ralston Lapp and the Stein Campaign had all the statements made in the political advertisement, including those of Ms. Grimmett, fact-checked by an outside firm specializing in confirming the accuracy of claims made in political advertising.
Survivor was ultimately broadcast on various television stations throughout North Carolina during September and October 2020, including television stations within this District. The placements for those broadcasts were made by Ralston Lapp and paid for by the Stein Campaign….
On September 29, 2020, with the campaign fully underway, an attorney for the "Friends of Jim O'Neill" campaign committee filed a Complaint with the NCSBE alleging that the Stein Campaign and Attorney General Stein were in violation of the Statute on the grounds that candidate O'Neill, "who is the elected District Attorney for Forsyth County, has never in his career left 'rape kits sitting on a shelf'" because he was "never in the chain of custody as it relates to rape kits."
The Complaint stated that "[t]o protect the integrity of future elections, the O'Neill Committee requests the Board of Elections investigate these allegations and find probable cause to refer this Complaint to the Wake County District Attorney for further action."
Three days later, on October 2, 2020, Ms. Grimmett received a letter from a different attorney "writing on behalf of Jim O'Neill," claiming that her statement was "demonstrably false and legally actionable defamation." That letter further claimed that although "O'Neill, in his role as Forsyth County District Attorney, is tasked with prosecuting all criminal actions in Forsyth County" and "often provides legal advice to enforcement agencies," the office "has never been the 'custodial agency' of 1,500 rape kits" and "there is no shelf at the Forsyth County District Attorney's office or anywhere else over which Mr. O'Neill has ever had control where 1500 rape kits were located." The letter to Ms. Grimmett concluded by stating, "[o]n behalf of Mr. O'Neill, we demand that you immediately cease and desist from continuing to disseminate this clearly false and defamatory advertisement, and that you take all action to denounce these statements and prevent further publication."
In fact, two separate independent fact-checking organizations—one in broadcast media, the other in print—analyzed the advertisement and neither concluded that it was false. Indeed, one of the fact checkers stated that another district attorney, "on condition of anonymity," stated that, while local law enforcement was typically responsible for having rape kits tested, that "doesn't leave the DA in that jurisdiction entirely blameless." …
Months after the general election in which Attorney General Stein prevailed, in March 2021, investigators for the NCSBE communicated to Ms. Grimmett that they were "seeking as much information as possible" concerning the political advertisement. On March 15, 2021, Ms. Grimmett was interviewed by NCSBE investigators. Later that same month, the Attorney General's chief of staff was interviewed by the same investigators.
On July 14, 2021, counsel for the NCSBE reported to counsel for the Stein Campaign that they had "completed our investigation and presented our findings and recommendation" to the Wake County District Attorney's Office….
Over the course of the next six months, through the end of 2021, SBI agents conducted an exhaustive series of interviews into virtually every aspect of the political advertisement's creation, production, execution, and, most critically for this Motion, content. Ms. Grimmett was subjected to a second interview on August 26, 2021. After her re-interview, SBI investigators conducted at least five additional interviews on the subject of the political advertisement, including a principal of Ralston Lapp, the Stein Campaign manager and treasurer, the Attorney General himself, as well as a second interview with the Attorney General's chief of staff.
From the beginning of 2022 through late May of this year, nothing further of substance was communicated regarding the investigation. Based on further communications concerning the investigation, however, enforcement action under the Statute appears imminent.
Thanks to David Keating of the Institute for Free Speech for the pointer.