• by Wendy Davis  @wendyndavis, February 10, 2023

A 92-year-old North Carolina law that criminalizes “derogatory” statements about political candidates likely violates the First Amendment, a federal appeals court has ruled.

The decision, issued Wednesday by a three-judge panel of the 4th Circuit Court of Appeals, brought an end to the Wake County District Attorney's investigation into state Attorney General Josh Stein over a 2020 campaign ad.

The ad, which was broadcast in North Carolina, accused Republican challenger Jim O'Neill, District Attorney of Forsyth County, of allowing untested rape kits to pile up.

O'Neill filed a complaint about the ad to the state Board of Elections, alleging that Stein and his campaign violated the state's 1931 libel law.

That law makes it a misdemeanor to spread a “derogatory reports” regarding political candidates when the speaker knows the report is false, or acts with reckless disregard of the report's falsity, and when the report is aimed at affecting the election.

The Board of Elections recommended against charging Stein -- partly due to concerns about whether charges would be constitutional.

Months later, a criminal prosecutor told the Stein campaign that the Wake County District Attorney planned to present charges to a grand jury.

Stein then sought an order declaring the law unconstitutional, and an injunction blocking enforcement. The 4th Circuit temporarily blocked the law in August, and granted the injunction on Wednesday.

The appellate judges said in a 15-page ruling that the law violates the First Amendment for two reasons. The first is that it “appears to criminalize at least some truthful statements,” Circuit Judge Toby Heytens said in an opinion joined by Circuit Judge Allison Jones Rushing.

“In common usage, there is no reason a statement cannot be both derogatory and true,” Heytens wrote.

Secondly, even if the law only applied to false statements, it would still be a form of unconstitutional “content discrimination,” because it treats statements about politicians differently than statements about anyone else, the judge wrote.

“Under this statute, speakers may lie with impunity about businesspeople, celebrities, purely private citizens, or even government officials so long as the victim is not currently a 'candidate in any primary or election,'” the opinion states.

Stein then sought an order declaring the law unconstitutional, and an injunction blocking enforcement.

Wake County District Attorney N. Lorrin Freeman stated Thursday that she was dropping the investigation, in light of the 4th Circuit's ruling. She said the ruling prevents the state from proceeding within the two-year statute of limitations for misdemeanors.