At least in the near future, a grand jury may not bring charges against Attorney General Josh Stein over an allegedly false campaign ad, a federal appeals court ruled Tuesday.
The court order came just 24 hours after Wake County prosecutors convened a grand jury to hear their case and the jurors responded that they wanted to indict Stein and two top aides. The charges could’ve come down the next time the grand jury was scheduled to meet, in less than a month, The News & Observer reported — until the new court order at least temporarily shut that down.
Tuesday’s order halts any further action in the criminal investigation until the federal courts can decide whether North Carolina’s law criminalizing false statements about politicians is a violation of the First Amendment.
The court’s ruling was 2-1. Judge Allison Jones Rushing, who was nominated to the court by former Republican President Donald Trump, said she would’ve let the charges against Stein move forward. The judges in the majority were Toby Heytens, a nominee of Democratic President Joe Biden, and Albert Diaz, a nominee of former Democratic President Barack Obama.
“This law is 90 years old, has never been used against any candidate, and undermines free speech in our state,” Stein’s campaign said in a statement. “We are pleased that the Court has ordered this stay against (Wake County District Attorney) Lorrin Freeman and believes that we are ‘likely to succeed on the merits.’”
The ruling was the second piece of good news for Stein the day after Monday’s bombshell from the grand jury. His former boss and fellow Democratic politician Gov. Roy Cooper also chimed in with a strong condemnation of the criminal investigation, calling it “an unprecedented repression of free speech.”
The judges wrote that Stein’s campaign has a strong case for the law being unconstitutional; similar laws in multiple other states have been ruled unconstitutional.
It’s unclear if North Carolina’s version has ever before been challenged. Stein’s campaign said this is the first time in nearly a century since the law was written that a prosecutor has attempted to charge anyone with breaking it.
The judges wrote that in addition to potentially harming Stein and his team, any further action from Freeman’s office — which handles most alleged violations of elections law anywhere in the state — could have a negative effect on all the political campaigns happening in North Carolina right now for the 2022 midterms, with candidates potentially scared to run ads they normally would have.
“Candidates currently running for office in North Carolina might well be chilled in their campaign speech by the sudden reanimation of a criminal libel law that has been dormant for nearly a century — harming the public’s interest in a robust campaign,” the judges wrote, citing past court rulings that “the general remedy for even ‘falsehoods and fallacies’ ‘is more speech, not enforced silence.’”
Stein has said he stands by the truth of his 2020 ad, and that the reason his team created it was to counter false statements about him being made by his opponent.
In 2020, Stein and his Republican opponent, Forsyth County District Attorney Jim O’Neill, had engaged in a back-and-forth over the state’s backlog of untested evidence kits from rape and other sexual assault cases. Each blamed the other for inaction, and accused the other of making false accusations.
But unlike Stein, O’Neill requested criminal charges be brought over their public spat on the rape kit backlog.
After the investigation dragged on in secret for over a year, handled by the State Bureau of Investigation and the Wake County district attorney’s office, Stein’s campaign filed this federal lawsuit in July, seeking to have the law ruled unconstitutional. That also made the investigation public for the first time.
Freeman had wanted the court to let her office push ahead with the investigation and potential charges, noting in a court filing last week that the statute of limitations will expire soon. The judges were dismissive, however, calling it a problem of her own making.
“It appears that any such injury is, at least to some extent, self-inflicted, because the district attorney has not adequately explained why it was necessary to wait so long to bring charges in a case where the alleged crime was broadcast on television nearly two years ago,” they wrote.
True or false statements about politicians
The judges also accepted the Stein team’s argument that if Freeman’s office is allowed to pursue charges, anyone charged would suffer “irreparable harm,” regardless of whether they’re ultimately convicted, should the law be struck down as unconstitutional.
They wrote that the way the North Carolina law is worded is particularly worrisome because it could even lead to someone being charged with a crime for making true statements about politicians — if the person didn’t know for sure if they were true.
The law criminalizes false statements made about politicians. But it also goes a step further, and says that making any derogatory statement about a politician can be a crime, if made “in reckless disregard for its truth or falsity.”
The judges wrote that “the First Amendment does not permit a state to criminalize ‘true statements.’”
Stein’s campaign had asked the judges to issue this ruling last week. Their delay meant that the grand jury was able to publicly say Monday it wanted to bring charges. But Tuesday’s order stopped those charges from being made official, at least while the appeal is pending.
For more North Carolina government and politics news, listen to the Under the Dome politics podcast from The News & Observer and the NC Insider. You can find it at https://campsite.bio/underthedome or wherever you get your podcasts.
This story was originally published August 23, 2022 6:10 PM.
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