• by Ray Schultz , September 28, 2022

Duke University’s First Amendment Clinic has filed a friend-of-the-court brief, urging a federal appeals court to throw out North Carolina’s 91 year-old criminal libel law.  

The brief supports Attorney General Josh Stein’s effort to overturn the law before the U.S. Court of Appeals for the Fourth Circuit. In August, that court at least temporarily blocked enforcement of the law against Stein and campaign associates who could have faced charges under the statute. 

“At best, this law was an unconstitutional attempt to impose rudimentary civility on political discourse, which is both plainly impermissible and unattainable,” the Duke brief contends. “At worst, the statute was an attempt to chill the speech of rivals within a party to gain political power—a chilling echo of the English monarch’s reliance on criminal libel to stifle his critics, and also impermissible.” 

The brief says the speech the law was intended to criminalize—"the robust discussion and debate about the qualifications of candidates for elected office—is now recognized as political expression entitled to the highest protections afforded by the First Amendment.”

In making this case, the brief outlines a history of criminal libel, dating back to 1275, when a criminal statue known as De Scandalis Magnatum prohibited “any False News or Tales whereby Discord or Occasion of Discord or Slander may grow between the King and his People or the Great Men of the Realm.” 

The brief notes that “The Supreme Court has long recognized that robust discussion and debate about the qualifications of candidates is a form of political expression integral to our electoral systems and thus to the democratic form of government established by our Constitution. As such, electioneering and other forms of political speech are entitled to the highest protections afforded by the First Amendment."

The court had blocked enforcement of the law against Stein in August. A hearing is scheduled for December. 

The case concerns accusations exchanged between the 2020 campaigns of Democrat 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” created by Ralston Lapp Guinn Media Group. It charged that O’Neill had a large backlog of such kits in his own jurisdiction in Forsyth County.  

O’Neill, who is Forsyth County DA, disputed this ad, and filed a libel suit under the criminal law. 

The Appeals Court decision blocking the law came shortly after the Wake County grand jury asked the district attorney general to submit an indictment for it to consider under the controversial law. Wake County District Attorney Lorrin Freeman was investigating the campaigns.   

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