The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

N.C. Ban on Criminal Libel of Candidates Likely Unconstitutional, Fourth Circuit Holds


The law provides:

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.

Today's Grimmett v. Freeman (4th Cir.), written by Judge Toby Heytens and joined by Judges Albert Diaz and Allison Rushing, concluded that the statute is unconstitutional because it "appears to criminalize at least some truthful statements":

"[D]erogatory reports" are prohibited when the speaker makes them "knowing such report to be false or in reckless disregard of its truth or falsity." We may assume a speaker cannot "know[]" a statement "to be false" unless the statement is false. But by its plain terms this statute also criminalizes truthful derogatory statements so long as the speaker acts "in reckless disregard of [a statement's] truth or falsity."

{The lack of an express limitation to false statements distinguishes this Act from criminal defamation statutes upheld by other circuits. See Frese v. Formella (1st Cir. 2022) (upholding statute prohibiting "purposely communicat[ing]" "any information" a speaker "knows to be false and knows will tend to expose any other living person to public hatred …" (emphasis added)); Phelps v. Hamilton (10th Cir. 1995) (upholding statute defining "[c]riminal defamation [as] maliciously communicating … false information tending to expose another living person to public hatred …" (emphasis added)).

(The court also noted that "derogatory" doesn't implicitly include a requirement of falsehood, and indeed "derogatory" in a related North Carolina provision has been interpreted as covering true but derogatory statements as well.)

And the court concludes that, even if the law were limited to libelous falsehoods, it would be unconstitutionally content-discriminatory within that category, in violation of R.A.V. v. City of St. Paul (1992):

The Act … limits its prohibition to statements about a certain subject ("any candidate in any primary or election") of a particular nature or made with a particular intent ("calculated or intended to affect the chances of such candidate for nomination or election")….

Under this statute, speakers may lie with impunity about businesspeople, celebrities, purely private citizens, or even government officials so long as the victim is not currently a "candidate in any primary or election." That is textbook content discrimination.

The Act's limitation to statements "calculated or intended to affect the chances of such candidate[s] for nomination or election," only compounds the problem. Taken literally, this language means spreading a viral falsehood hoping to end a candidate's marriage is fine but doing the same thing becomes a crime if it is intended (in whole or in part) to doom the person's political campaign….

[T]he lines this Act draws have no obvious relation to the reputation-based reasons for allowing States to prohibit libel in the first place. And that, in turn, is why the district attorney's attempt to analogize the Act to 18 U.S.C. § 871, the presidential threat statute, falls flat. As R.A.V. explained, a law prohibiting threats only against the President is constitutional because "the reasons why threats of violence are outside the First Amendment (protecting individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur) have special force when applied to the person of the President." The same sort of reasoning explains why a State may outlaw cross burning (and only cross burning) done with the intent to intimidate: "because burning a cross is a particularly virulent form of intimidation." Virginia v. Black.

Here, in contrast, the district attorney cites no authority suggesting the reasons undergirding libel laws have "special force" when applied to speech about political candidates intended to influence elections. In fact, First Amendment doctrine suggests the opposite. See, e.g., Gertz v. Robert Welch, Inc. (1974) ("Public officials and public figures … have a more realistic opportunity to counteract false statements than private individuals normally enjoy. Private individuals are therefore more vulnerable to injury, and the state interest in protecting them is correspondingly greater."). In addition, the justification the district attorney offers to support the Act's content discrimination (preventing campaign fraud and protecting election integrity) is of a different kind, not degree, than the reputation-based justifications underlying libel laws. Finally, the Act's careful limitation to only a subset of derogatory statements to which elected officials may be particularly hostile—those harmful to their own political prospects—raises the "possibility that official suppression of ideas is afoot."

As in R.A.V., the Act's limitation to speech addressing only certain topics renders it facially unconstitutional. "The dispositive question in this case … is whether content discrimination is reasonably necessary to achieve [North Carolina's] compelling interest[]" in preventing false defamatory speech made with actual malice. Here, "it plainly is not" because "[a]n ordinance not limited to" speech about current political candidates "would have precisely the same beneficial effect." "In fact the only interest distinctively served by the content limitation is that of displaying the [State's] special hostility towards" defamatory speech against political candidates. "That is precisely what the First Amendment forbids."

{If the Act is intended to prevent electoral fraud and preserve election integrity, it draws curious lines. The Act does not prohibit inflating a candidate's credentials or promoting self-aggrandizing falsehoods, nor does it touch knowing falsehoods that undermine the perception of electoral integrity without referencing a particular candidate. As the Supreme Court has recognized, this sort of "underinclusiveness can raise doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint."}

For more on the particular case that led to this decision, which involves a threatened prosecution against N.C. Attorney General Josh Stein, see this article by Josh Gerstein (Politico).