• by Ray Schultz , August 18, 2022

The dispute over enforcement of North Carolina’s 91-year-old criminal libel law is accelerating. 

The Josh Stein for Attorney General campaign has made an emergency filing to prevent being hit with an criminal indictment. 

Grand jury proceedings are “imminent,” the campaign says in a filing with the U.S. Court of Appeals for the Fourth Circuit.  

In a ruling last week, U.S. Judge Catherine C. Eagles declined to order a preliminary injunction against enforcement of the law. In addition, Eagles vacated her previously issued temporary restraining order. 

The Stein campaign and other plaintiffs asked the appeals court for an injunction pending appeal, then for an injunction that would prevent the Wake County District Attorney’s office from taking any step to enforce the law while the court considers these issues. 

They argue that the appeals court should have the time it needs. “But Plaintiffs should not in the meantime remain under threat of an unconstitutional, speech-based prosecution,” it adds. 

The Wake County district attorney’s office is planning the grand jury proceeding, it states. 

The statue makes it a crime to publish or circulate “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,” when the report is designed to affect an election outcome. This violates the First Amendment, the Stein campaign and others contend. 

The case concerns slurs exchanged between the primary campaigns of Stein and Republican Jim O’Neill for the office of Attorney General. O’Neill charged that Stein had let unused rape kits pile up.

Stein retaliated with a “corrective advertisement,” charging that O’Neill had a large backlog of such kits in his own jurisdiction in Forsyth County.  

O’Neill disputed this ad. “But he did not do so by pursuing a civil defamation action: Instead, as a sitting District Attorney, he sought to place law enforcement investigators in the position of judging the appropriateness of political speech,” the Stein campaign complaint alleges. 

The case does not directly involve a publication, but the Reporters Committee for Freedom of the Press states that it could have an impact on media.