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).

Comments

[@TheRealStuff]

I respectfully disagree that the law in question is unconstitutional. In my view, the law is a reasonable restriction on speech that is necessary to protect the integrity of the electoral process and the reputations of political candidates.

The majority's reliance on R.A.V. v. City of St. Paul is misplaced, as that case dealt with a statute that was viewpoint-discriminatory, while this law is content-neutral. Furthermore, the Supreme Court has recognized that political speech, including speech about political candidates, is not entitled to the highest level of protection under the First Amendment. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

In addition, the majority overlooks the fact that the First Amendment does not protect false or recklessly disregarded false speech. See United States v. Alvarez, 567 U.S. 709 (2012). The law in question is narrowly tailored to address this type of speech, as it only applies to statements about political candidates that are calculated or intended to affect their chances for nomination or election.

Finally, the majority's concern about the law's "curious lines" is not a valid reason to strike down the law. The First Amendment does not require that a statute address all forms of false or recklessly disregarded false speech. Instead, the question is whether the statute is narrowly tailored to achieve a compelling government interest. In this case, I believe that the interest in preserving the integrity of the electoral process and protecting the reputations of political candidates is compelling, and that the law is narrowly tailored to achieve that interest.

[The Margrave of Azilia]

Is @TheRealStuff quoting from anything?

[Ridgeway]

I wonder if this is Josh B playing with his ChatGPT app.

[@TheRealStuff]

Ha, as if. I'm just a washed-up liberal arts grad who wasted my time learning about public policy.

[The Margrave of Azilia]

Sorry for insinutation. 🙁

[Ridgeway]

Just what I'd expect a Chat Bot to say!!! 😉

[Both Sides]

Thread winner.

[David Nieporent]

http://www.icomefromthemirroruniverse.com?

I mean saying that the holding of Alvarez was that false statements aren't protected is completely wrong.

And saying that the holding of NYT v. Sullivan is that political speech isn't entitled to the highest level of protection is also completely wrong.

[apedad]

Here’s your answer:

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.” R.A.V., 505 U.S. at 390. 9

Footnote 9: 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.” Williams-Yulee v. Florida Bar, 575 U.S. 433, 448 (2015)

[Dilan Esper]

My reading is the law is unconstitutional for the first reason the Court gives. But I agree with your point on R.A.V. Especially given more recent caselaw, it's clear that the Court doesn't mean that literally any statute that divides up unprotected speech by content (not viewpoint) and subjects some of it to punishment is unconstitutional.

[rloquitur]

Parody would be swept up into this, and so would opinion. The problem is that even if you can criminalize libel of politicians in theory--it's the in practice part that will create the issues. Let's say, during the Obama-McCain race, I wrote: "Obama made common cause with the Taliban." My evidence--his comment that Americans in Afghanistan were "just" bombing villages and killing people. (Thus feeding into the enemy's propaganda campaign. Could I be prosecuted? What constitutes probable cause? Is parody ok? Sarcasm?

[ReaderY]

I agree the law has a drafting error because it doesn’t explicitly require the statements to be false.

However, I disagree that the First Amendment bars states from targetting criminalization of libel to contexts where the effects are considered public as distinct from purely private in nature.

Numerous statues select among speakers based on perceived consequences to the public. Congress passed a law prohibiting arson of churches in the 1960s. The law has commerce clause issues. But does the First Amendment really prohibit Congress from giving churches more protection than other places where speech commonly occurs? Does it prohibit a state from criminalizing altering traffic signs but not other kinds of signs? Does it prohibit a state from criminalizing shouting “fire” in a crowded theatre but not other kinds of false non-defamatory speech? The list is endless.

The First Amendment is supposed to encourage, indeed require, states to narrowly tailor of prohibitions to only where necessary, and to focus on specific societal harms. But tailoring is simply a kind of discrimination. If states cannot discriminate, they cannot tailor.

[rloquitur]

Shouting "fire" in a crowded theater is conduct. Why, because it's at best a disruption of a performance.

But how are you going to craft a statute that criminalizes libel? First, there have to be protections against abusive prosecutions--remember, chilling speech is a problem. How are you going to separate hyperbole, satire, parody etc.?

[ReaderY]

The same way you craft a statute that makes libel a civil tort. Why does it make a difference whether it’s classified as civil or criminal if it’s the same definition?

[rloquitur]

Don't think so. The abusive prosecution issue is much much attenuated in the civil context. Parody/Satire are much less likely to be an issue in the non-public persona/non-public concern arena.

[ReaderY]

Selective prosecution is about enforcement, not crafting the statute. And parody comes up pretty often in civil libel, often enought to enable the necessary distinctions to be addressed and a statute to be crafted. I’m not disagreeing that it might come up more often in an election context. But I don’t see that the civil/criminal classification makes it unmanagable.

[rloquitur]

Threat of selective prosecution is chilling in and of itself.

[rloquitur]

And who makes the decision on parody? Satire? Is it a matter of law (and still submitted to jury?)

[Tallman]

>because it doesn’t explicitly require the statements to be false.

Only because you got lucky re its truthfulness ...imho, you should to read the two parts of the 'or' statement together i.e., essentially as "knowing it false or not having a reasonable belief that it's true."

OTOH, I'll admit that 1st Amendment law is a bit odd with its vagueness, chilling, etc. doctrines.

[David Nieporent]

Arson is not speech.

[ReaderY]

True, bad example. But nonetheless narrow tailoring can’t be illegal. The First Amendment cannot similtaneously both require narrow tailoring on grounds a broad statute restricts speech not necessary to achieve a compelling state interest, and forbid narrow tailoring on grounds that a narrow statute discriminates on the basis of kinds of speech.

Related to an election simply isn’t a viewpoint. It’s a context, like a courthouse as a physical location. Criminalizing only libel related to an election doesn’t discriminate on the basis of subject matter or viewpoint. It narrowly tailors the criminalization to cases that particularly affect the public.

[arch1]

Does Trump just avoid NC on advice from his lawyers, at least during election season? If not, how has he not run afoul of this law, whose gleeful evisceration is to him a near-obligatory sacrament on public occasions?