A federal judge agreed on Monday to block for now any enforcement of a state law in a political ad investigation of North Carolina Attorney General Josh Stein鈥檚 campaign, saying it鈥檚 likely to win on legal claims that the law is unconstitutional.
Following a court hearing in Greensboro, U.S. District Judge Catherine Eagles ruled for Stein鈥檚 campaign and other plaintiffs against State Board of Elections members and Wake County District Attorney Lorrin Freeman.
The temporary restraining order that Eagles signed means that Freeman's office is prevented from using that law to prosecute anyone associated with a 2020 commercial that the Democratic incumbent aired against then-Republican challenger Jim O鈥橬eill.
The law prohibits anyone from knowingly publishing or circulating false information about a candidate with the intent of hurting that candidate鈥檚 chances in the election. It enabled an ongoing investigation into the Stein commercial, which focused on untested rape kits held by local law enforcement agencies.
O鈥橬eill鈥檚 campaign cited the law in his September 2020 election board complaint against Stein鈥檚 campaign committee over the ad. That led to interviews by board investigators, while the State Bureau of Investigation later talked to Stein, his campaign staff and a woman who appeared in the ad. The plaintiffs called the law overbroad and outdated and said it fails to protect core political speech, leading it to violate the First Amendment.
In her order, Eagles wrote that a temporary order was necessary because the plaintiffs and others would have been subject to potential criminal prosecution for violating an overly broad criminal libel statute before a hearing for a more long-term injunction could be held.
Eagles told the legal parties to return as soon as Aug. 4 to give any reasons why the order shouldn鈥檛 be extended into a preliminary injunction.
Before the law鈥檚 constitutionality can be closely examined, 鈥渢he balance of the equities favors an injunction protecting the First Amendment right of the plaintiffs and other political candidates to free speech,鈥� she wrote Monday.
Outside lawyers representing the state board and the Wake DA -- Stein鈥檚 office would otherwise defend the constitutionality of a state law -- urged Eagles to reject the campaign鈥檚 request to block enforcement of the law. In court filings, the attorneys questioned why Stein鈥檚 campaign and the other plaintiffs had taken so long to challenge the law.
Now the 鈥減laintiffs seek to interfere with the work of a state grand jury regarding potential violations of state criminal law caused by a political ad that occurred in 2020, almost two years ago,鈥� wrote Joe Zeszotarski, who is representing Freeman. While Eagles didn't issue a blanket prohibition of enforcing the law, which dates back to at least 1931, Stein's campaign lawyer said it could find no legal records of it ever being previously enforced.
Stein鈥檚 campaign, the consulting firm that produced the ad and the woman in the ad wrote they filed the lawsuit now because 鈥渆nforcement action鈥� by the Wake DA鈥檚 office 鈥渁ppears imminent.鈥� It didn鈥檛 elaborate. The statute of limitations on the misdemeanor -- punishable by up to 60 days in jail with fines -- is two years. Any charges in the case would be a political blow to Stein, the state鈥檚 top law enforcement officer and a possible 2024 gubernatorial candidate.
In a written statement, Stein's campaign said it was pleased with Monday's ruling and 鈥渨e look forward to this issue being resolved soon once and for all.鈥�
Freeman recused herself from the investigation 鈥� citing a close working relationship with both Stein and O鈥橬eill 鈥� and has left it to her to assistant DA to lead the case. Freeman and a majority of the elections board members are Democrats.
The ad in question featured a woman who asserted that O鈥橬eill 鈥渓eft 1,500 rape kits sitting on a shelf鈥� in Forsyth County. O鈥橬eill said at the time that the ad was bogus because police agencies, not prosecutors, are responsible for testing the kits.
O鈥橬eill said in an emailed statement late Monday that Stein has gone to court 鈥渢o avoid potential criminal prosecution鈥� and 鈥渟o that politicians like himself can routinely lie to the public without repercussion or punishment.鈥�
The lawsuit called the ad a 鈥渃orrective political advertisement鈥� designed to counter false accusations by O鈥橬eill that Stein had failed to act on over 15,000 untested rape kits during his time as attorney general.
