Appeals court blocks enforcement of law in Stein campaign ad case

A federal appeals court blocked enforcement of an elections law at the center of an investigation targeting Attorney General Josh Stein, saying that application of the law could restrain campaign speech.

The Wake County District Attorney’s office is probing allegations that Stein’s campaign in 2020 broke an untested, 90-year-old election law barring candidates from circulating false and derogatory information about each other.

Stein is challenging the constitutionality of the law in federal court. After a federal judge last week allowed the case to move forward, the U.S. Court of Appeals for the 4th Circuit on Tuesday granted Stein’s request for an injection, ruling 2-1 in his favor.

“Plaintiffs have made a ‘strong showing that [they are] likely to succeed on the merits’ of their First Amendment challenge,” the majority wrote. “Because this statute regulates ‘core political speech,’ First Amendment concerns are at their ‘zenith’ and we must subject the statute to particularly careful constitutional examination.”

The court suspended arguments in the case until December, noting that the case could affect ongoing election campaigns.

“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 court said in its ruling.

Circuit court judge Allison Rushing dissented, saying she didn’t believe Stein’s attorneys had made a strong enough argument that the proceeding should be blocked.

In a statement Tuesday, Stein’s campaign said the case undermines free speech and that it believes it will prevail in its challenge. Wake County District Attorney Lorrin Freeman, who has recused herself in the case, didn’t immediately respond to a request for a comment.

Wake DA's investigation into AG Josh Stein's campaign ad, explained

Stein’s campaign is accused of violating the law enacted in 1931. If charged and convicted with the misdemeanor, Stein and others involved in the campaign could face a fine of up to $1,000 and up to 60 days in jail.

Stein’s Republican opponent in 2020, Jim O’Neill, filed a complaint with the North Carolina Board of Elections over one of the Stein campaign’s television ads. In it, a Stein supporter says O’Nell “left 1,500 rape kits sitting on a shelf, leaving rapists on the streets.”

O’Neill, the Forsyth County District Attorney, alleged that the ad is defamatory because local law enforcement agencies such as city police departments and county sheriffs departments typically maintain custodial control of rape kits.

Stein’s campaign says the ad is fair because O’Neill, as a district attorney, has some influence over whether rape kits are tested and over whether sexual assault cases are prosecuted.

The North Carolina State Elections Board, which investigated the allegation and found insufficient evidence for a criminal charge, says it’s unaware of any politician ever being charged under the law.

Cooper: Investigation of AG Stein is 'unprecedented repression of free speech'

Because of the novelty of the Wake County District Attorney’s probe – and the potential consequences for Stein, considered a favorite to run for governor in 2024 – Wake prosecutors have faced scrutiny from the North Carolina Democratic Party and others.

The appeals court ruling capped off a day in which Freeman’s office faced newfound scrutiny from the political leader of their party in North Carolina.

“The idea that the government can criminally prosecute a person for expressing a legitimate political opinion runs counter to the First Amendment and threatens anyone who wants to criticize a public official,” Gov. Roy Cooper said in the statement Tuesday. “This is an unprecedented repression of free speech that should trouble everyone.”

Rushing, the dissenting circuit court judge, suggested in her opinion that legal intervention was premature.

“The people of North Carolina have an interest in letting North Carolina's courts construe this untested state statute in the normal course if it is actually enforced,” Rushing wrote. “Even absent our intervention, an indictment may never issue–yet another reason to stay our hand and follow the customary course of deciding constitutional questions on appeal only after due deliberation.”