RALEIGH — 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’s campaign, saying it’s 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’s campaign and other plaintiffs who filed an unusual lawsuit last week 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’Neill.
The law prohibits anyone from knowingly publishing or circulating false information about a candidate with the intent of hurting that candidate’s 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’Neill’s campaign cited the law in his September 2020 election board complaint against Stein’s 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 The plaintiffs called the law overbroad and outdated and said it fails to protect core political speech, leading it to violate the First Amendment.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’t be extended into a preliminary injunction.
Before the law’s constitutionality can be closely examined, “the balance of the equities favors an injunction protecting the First Amendment right of the plaintiffs and other political candidates to free speech,” she wrote Monday.
Outside lawyers representing the state board and the Wake DA — Stein’s office would otherwise defend the constitutionality of a state law — urged Eagles to reject the campaign’s request to block enforcement of the law. In court filings, the attorneys questioned why Stein’s campaign and the other plaintiffs had taken so long to challenge the law.
Now the “plaintiffs 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,” 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’s campaign, the consulting firm that produced the ad and the woman in the ad wrote they filed the lawsuit now because “enforcement action” by the Wake DA’s office “appears imminent.” It didn’t 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’s 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 “we look forward to this issue being resolved soon once and for all.”
Freeman recused herself from the investigation — citing a close working relationship with both Stein and O’Neill — 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’Neill “left 1,500 rape kits sitting on a shelf” in Forsyth County. O’Neill said at the time that the ad was bogus because police agencies, not prosecutors, are responsible for testing the kits.
O’Neill said in an emailed statement late Monday that Stein has gone to court “to avoid potential criminal prosecution” and “so that politicians like himself can routinely lie to the public without repercussion or punishment.”
The lawsuit called the ad a “corrective political advertisement” designed to counter false accusations by O’Neill that Stein had failed to act on over 15,000 untested rape kits during his time as attorney general.
