N.C. Election Criminal Libel Statute Enjoined Pending Appeal

From yesterday’s decision in Grimmett v. Freeman, entered by Judge Toby Heytens, joined by Judge Albert Diaz:

In 2020, Josh Stein and Jim O’Neill were engaged in a heated campaign to serve as attorney general of North Carolina. The Stein campaign ran an advertisement the O’Neill campaign believes was false. Stein ultimately won the election.

Now, nearly two years later, the district attorney’s office in Wake County has indicated that it plans imminently to seek an indictment against Josh Stein’s campaign (and others involved in producing the advertisement) under a state criminal libel statute. The potential targets of the investigation sought a preliminary injunction against the district attorney, which the district court denied. The Stein campaign and its affiliates appealed and seek an injunction pending appeal.

We conclude plaintiffs have satisfied the demanding standard for obtaining an injunction pending appeal. Most critically, plaintiffs have made a “strong showing that [they are] likely to succeed on the merits” of their First Amendment challenge. Nken v. Holder (2009) (quotation marks omitted)…. The North Carolina statute at issue criminalizes publishing “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.” 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.

Like the district court, we acknowledge that a nearly 60-year-old decision of the Supreme Court states that a “lie, knowingly and deliberately published about a public official” may potentially be the subject of a criminal prosecution. Garrison v. Louisiana  (1964) (emphasis added). Plaintiffs have questioned whether that holding remains viable under modem First Amendment doctrine. But, even accepting Garrison as good law, that same decision made clear that the First Amendment does not permit a State to criminalize “true statements,” even those “made with ‘actual malice.’” And it appears the law challenged here does just that by criminalizing a “derogatory report” made either “knowing such report to be false or in reckless disregard of its truth or falsity.” {At this point, we are not persuaded by the district court’s apparent conclusion that “derogatory” necessarily means false. The ordinary meaning of “derogatory” is “[l]essening in good repute; detracting from estimation; disparaging.” Derogatory, The Practical Standard Dictionary of the English Language (1936); see also State v. Petersilie, 432 S.E.2d 832, 834, 842 (N.C. 1993) (holding that a statute criminalizing “derogatory charges against candidates” “clearly does” cover “even truthful statements”). Plenty of perfectly true statements might reflect badly on a person and lessen their good repute.}

My quick reaction at this point:

I think the better way of reading the statute, especially in light of the canon that statutes should be interpreted to avoid constitutional problems, is to read “knowing such report to be false or in reckless disregard of its truth or falsity” as implicitly requiring that the statement be false. The “knowing such report to be false” expressly requires falsehood (if something is true, you might believe it’s false, but you can’t know it’s false), and in context “reckless disregard” should be read as importing a falsity requirement—especially since “knowledge that it was false or with reckless disregard of whether it was false or not” (I quote New York Times v. Sullivan here) is a standard legal phrase that’s used only as to falsehoods. Indeed, courts themselves at times use this phrase to implicitly require falsehood, e.g., Masson v. New Yorker Magazine, Inc. (1992) (or, similarly, Cannon v. Peck (4th Cir. 2022)):

The First Amendment limits California’s libel law in various respects. When, as here, the plaintiff is a public figure, he cannot recover unless he proves by clear and convincing evidence that the defendant published the defamatory statement with actual malice, i.e., with “knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times Co. v. Sullivan (1964). Mere negligence does not suffice. Rather, the plaintiff must demonstrate that the author “in fact entertained serious doubts as to the truth of his publication,” St. Amant v. Thompson (1968), or acted with a “high degree of awareness of … probable falsity,” Garrison v. Louisiana (1964).

Literally, this too could be read as applying to true statements said with reckless disregard (especially since “defamatory,” like “derogatory,” doesn’t necessarily require falsehood); but in context, it’s clear that the Court viewed “knowledge that it was false or with reckless disregard of whether it was false or not” as implicitly requiring falsehood both for the knowledge and the reckless disregard prongs. (The statute in Petersilie only required anonymous derogatory statements, not ones said with knowledge of falsehood or reckless disregard.)

In any event, though, the court disagreed, and went on to conclude that the statute should indeed be enjoined given this potential that it found to cover true statements:

[As to alleged irreparable harm to the government,] the district attorney primarily contends that the two-year limitations period is about to run, jeopardizing her power to prosecute should she ultimately prevail in this appeal. 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. In any event, plaintiffs have represented to this Court that they are willing to agree to a reasonable stipulation tolling the limitations period, mitigating the impact of any such injury. And to the extent the State has an interest in regulating false campaign speech (in this case or generally), the district attorney has not explained why an ordinary civil defamation action is inadequate to the task.

An injunction pending appeal also serves the broader public interest. 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. After all, “it is our law and our tradition that more speech, not less, is the governing rule,” Citizens United v. FEC  (2010), and that the general remedy for even “falsehood and fallacies” “is more speech, not enforced silence,” Linmark Assocs. v. Willingboro Township  (1977) (quoting Whitney v. California (1927) (Brandeis, J., concurring)).

Judge Allison Rushing dissented:

Plaintiffs have not demonstrated they would suffer irreparable harm during the pendency of this expedited appeal absent injunctive relief. No Plaintiff claims that their speech is currently being chilled, or will imminently be chilled, because of the possible future enforcement of the North Carolina statute. The plaintiff public relations firm avers that it “intends to continue to work with North Carolina campaigns and candidates” but “will need to reconsider [its] position in the event that political advertising in North Carolina becomes a subject of criminal law enforcement.” That doubly qualified statement cannot support a finding of irreparable harm, especially when the political advertisement the State is investigating was last aired almost two years ago and no Plaintiff claims an interest in airing that advertisement, or a similar one, during this expedited appeal.

On the other side of the balance, the Wake County district attorney’s interest is significant. As the majority acknowledges, the two-year limitations period apparently will soon expire, and if we enjoin the grand jury proceedings, the State will forever lose its opportunity to enforce the law. The majority purports to know, on an undeveloped record, that the district attorney’s injury is “self-inflicted.” I do not agree with that reading of the limited record, and the State certainly does not owe us a more detailed explanation of its internal investigation and deliberative process to justify enforcing its laws within the relatively brief time period allotted by the state legislature. Moreover, I do not see how the majority’s proposed tolling stipulation between Plaintiffs and the district attorney would preserve the district attorney’s ability to prosecute the potential targets of the grand jury investigation, which by all accounts include individuals who are not parties to this lawsuit.

As for the public interest, the majority’s speculation about the current campaign cycle is out of place when its injunction does not reach any current campaign but is restricted to these Plaintiffs and their political advertisement that last aired almost two years ago. 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. 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.

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