A federal judge extended on Thursday a temporary block on enforcement of a state law that could be used to prosecute N.C. Attorney General Josh Stein for allegedly defaming Forsyth County District Attorney Jim O’Neill in a 2020 political ad.
U.S. District Judge Catherine C. Eagles’ order will be in place until Tuesday, when she plans to decide whether enforcement should be blocked until a federal court can rule on Stein’s challenge to the state law.
Stein’s campaign alleges, in a lawsuit filed July 21, that barring people from making derogatory and false statements about candidates in an election is unconstitutional and infringes on political free speech. The lawsuit initially was filed against members of the State Board of Elections and Wake County District Attorney Lorrin Freeman, whose office is considering potential criminal charges against Stein and others. The State Board of Elections has since been dismissed from the lawsuit, leaving Freeman as the remaining defendant.
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This litigation comes because of a campaign ad that ran between August and October 2020, when O’Neill, a Republican, was trying to unseat Stein, the Democratic incumbent, for attorney general.
O’Neill narrowly lost the election, then filed a complaint with the State Board of Elections, alleging that the ad falsely suggested he mishandled 1,500 untested rape kits in Forsyth County. His campaign said O’Neill, as district attorney, has no control over what law enforcement agencies do with rape kits. O’Neill requested a criminal investigation.
The State Board of Elections completed its investigation in 2021 and turned it over to the Wake County District Attorney’s Office. Freeman recused herself and assigned it to one of her senior prosecutors, David Saacks. On July 25, the Wake County District Attorney’s Office was going to have an agent with the State Bureau of Investigation testify in front of a grand jury. Wake County prosecutors wanted the grand jury to determine if there was enough evidence for prosecutors to seek an indictment against Stein and others in his campaign office for alleged violation of the state law.
But on that same day, Eagles issued a temporary restraining order, meaning that prosecutors couldn’t go to the grand jury.
In the ad, a woman named Juliette, who is a named plaintiff in the lawsuit, says she is a sexual assault survivor. She was, at the time, a part-time employee in Stein’s office. She applauded Stein’s efforts to deal with the backlog of untested rape kits and said, “...and when I learned that Jim O’Neill left 1,500 rape kits sitting on a shelf leaving rapists on the street, I had to speak out.”
O’Neill has said that this part of the ad is false and defamed him. In court papers filed Monday, William D. Marsh, a special agent with the SBI, outlined in a sworn statement what he found out in his investigation of O’Neill’s complaint. He talked to several law enforcement officers, including retired Capt. Steven Tollie of the Winston-Salem Police Department, who all told him that O’Neill has no authority to order them to submit untested rape kits.
Joseph Zeszotarski, attorney for Freeman, said in court papers that, “Stein and others in his campaign were aware of and/or recklessly indifferent to that falsity (of the ad), given their positions as lawyers and elected officials intricately involved in the legislation creating the SAECK (Sexual Assault Evidence Collection Kits) initiative” and that “the Stein Political Ad was derogatory toward his political opponent.”
Stein’s campaign maintains that the ad was accurate and that the company that produced the ad, Ralston Lapp Guinn, fact-checked the ad.
At the hearing Thursday, Zeszotarski and Pressly Millen, attorney for Stein’s campaign, argued over the constitutionality of the law, which Millen said in court has only been used once — in 1946 in Camden County.
Zeszotarski said this is simple.
“If it is defamatory, whether political or not, it is not protected (under the First Amendment),” he said. And the state law, he argued, serves a compelling public interest — to protect elections from fraud and libel.
Millen said that just isn’t true. The law does not serve a compelling public interest, he said. Protecting the reputation of an aggrieved candidate who could sue civilly for defamation does not serve a public interest and should be scrutinized harshly if it infringes on First Amendment protections for free speech, he said.
Eagles, however, pushed back a bit on some of Millen’s arguments, wondering why there shouldn’t be a criminal law punishing politicians for lying about each other. And she wondered how the law would infringe on future political free speech.
But she also made clear that she hasn’t made up her mind about whether she will issue a preliminary injunction.
Millen issued a statement after the hearing: “We appreciate the Court’s thoughtful consideration and looking forward to its ruling on Tuesday.”
Stein’s campaign also issued a statement: “This whole case is about survivors of sexual assault who have been waiting for justice for far too long. My team and I have been working hard for more than five years to aggressively tackle the backlog of untested sexual assault kits. We are seeing results — DNA is breathing new life into cold cases, law enforcement officers are making arrests, and District Attorneys are getting convictions. Our communities are safer as a result. We will not let up.”
In previous statements, O’Neill has accused Stein of lying in his ad and trying to escape accountability by seeking to overturn the state law.
Violations of the state law are considered misdemeanors and punishable by a maximum of 60 days in jail and court fines.