RICHMOND, Va. (CN) — A Fourth Circuit panel heard arguments Tuesday over whether the campaign committee for North Carolina’s Democratic attorney general should face criminal charges under a state law banning the spread of false information to damage a candidate’s shot at winning an election.
During the 2020 election for state attorney general, Democratic incumbent Josh Stein released a TV ad accusing his Republican challenger, Forsyth County District Attorney Jim O’Neill, of ignoring 1,500 untested rape kits in his district.
Following the release of the ad, O’Neill promptly filed a complaint with the North Carolina State Board of Elections. He asked its members to investigate the ad under an obscure state law that bars candidates from making false and derogatory statements about their opponent that would hurt their chances of winning.
Less than two months after the TV ad aired, Stein won the race by a narrow margin.
“Rather than engage in counterspeech from his candidate’s platform (or filing a civil defamation claim), the challenger’s campaign sought to enlist the police power of the state to regulate political speech,” attorneys for Stein’s committee wrote in an 81-page brief to the Fourth Circuit.
However, Wake County District Attorney Lorrin Freeman, seeking to use the statute in prosecution of Stein and his advisers, asked the North Carolina State Bureau of Investigation to launch a probe in 2021. A criminal indictment would put a damper on Stein’s possible run for governor in 2024.
Stein and the members of the committee sued to challenge the constitutionality of the statute. In August, the Fourth Circuit temporarily froze the investigation into the ad while it reviewed the case.
Michael Dreeben, who represented the attorney general's campaign committee on Tuesday, told the three-judge appellate panel that North Carolina is one of only nine states that has a criminal statute specifically directed at candidate activities.
“These states have not enforced these statutes throughout history. We are aware of only one prosecution under any of these statutes in North Carolina in 1947,” Dreeben said. “This state of affairs reflects that the states have not found it necessary.”
He said the statute is overbroad and not necessary to further a compelling state interest.
“The interest of the states and of the United States in campaigns that are free from defamatory, derogatory, false campaigning is apparent, but the necessity of a criminal statute to enforce that is not,” Dreeben said.
U.S. District Judge Catherine Eagles had initially halted enforcement of the statute in July, but decided in August that the law actually does pass constitutional muster.
On appeal, Stein's committee members are asking for an injunction to prevent the district attorney from bringing charges based on the TV ad until the case is done.
“How would your clients’ First Amendment rights be infringed in the interim, until a judgment’s delivered if there’s not an injunction?” U.S. Circuit Judge Allison Jones Rushing, a Donald Trump appointee, asked Dreeben on Tuesday.
The attorney responded that the statute could wrongfully chill political speech, but Rushing pointed out that campaigning is not currently happening.
“One of the plaintiffs in the case is a media consultant that is regularly involved in the political process and, as your honor knows, included an affidavit that indicated that entity would be chilled by the threat of criminal prosecution,” Dreeben said.
Joseph Zeszotarski, who represents the state defendants in the case, told the panel that the district court correctly found that the 1930s criminal defamation statute at issue is constitutional.
“At the outset, I'd like to stress the extraordinary nature of the relief the plaintiffs are seeking. They’re asking this court to declare a state statute unconstitutional on its face,” Zeszotarski said.
Challenging Dreeben’s earlier assertion, Zeszotarski said the law is narrowly tailored to prevent fraud and libel in elections.
“This law is the legislature's law. It's the will of the people of North Carolina and they’re asking the federal court to come in and tell the state legislature that they cannot have this,” the attorney said.
Rushing was joined on the panel by U.S. Circuit Judges Albert Diaz, a Barack Obama appointee, and Toby Heytens, who was appointed by President Joe Biden.
The panel did not indicate when a ruling will be released.
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