N.C. Attorney General Josh Stein is asking the 4th U.S. Circuit Court of Appeals to block the Wake County district attorney from proceeding with any criminal charges linked to a challenged state law.
Stein filed paperwork Wednesday asking the appellate court to grant an injunction against enforcement of the law during the course of his appeal. A second emergency motion asks appellate judges to make a decision by Friday.
The court has called for Wake D.A. Lorrin Freeman to respond by Thursday.
“[T]he District Attorney for Wake County … is threatening to enforce a criminal libel law in a way that curtails public debate and undermines the integrity of the democratic process in North Carolina,” wrote attorney Pressly Millen, who represents Stein’s campaign committee and two other plaintiffs. “By this appeal, Plaintiffs-Appellants … ask this Court to put candidates and voters – not courts and criminal statutes – at the center of the political process. By this motion, Plaintiffs request an injunction pending appeal prohibiting the District Attorney from seeking to enforce an overbroad, poorly tailored criminal libel law while this Court decides whether enforcement of that law violates the First Amendment.”
The emergency motion urges the Appeals Court to “preserve the status quo.”
“The issues in this appeal are important – they implicate ongoing restrictions on core political speech – and, as shown by the district court’s orders granting a restraining order but then denying an injunction, complex,” Millen wrote. “The Court should act now to ensure that these issues are preserved for appellate review.”
New action in the 4th Circuit follows U.S. District Judge Catherine Eagles’ refusal Monday to reconsider her ruling against Stein in the case.
After granting the attorney general a temporary restraining order blocking any criminal charges linked to the challenged law, Eagles reversed course. She dropped the TRO and rejected Stein’s request for an injunction blocking the challenged law.
Potential criminal charges for Stein and other plaintiffs in the case would result from a television ad Stein aired during his 2020 re-election campaign. The ad, titled “Survivor,” featured Juliette Grimmett, an employee of Stein’s N.C. Justice Department. The ad criticized Stein’s Republican challenger.
The Wake D.A.’s office “will soon present testimony to a grand jury to determine whether to initiate criminal proceedings” linked to the ad, according to Stein’s emergency motion.
In 2020 the incumbent N.C. Attorney General Stein, a Democrat, faced a challenge from Forsyth County District Attorney Jim O’Neill, a Republican.
The two clashed during the campaign over rape kits used to help identify and prosecute offenders. Stein and O’Neill blamed each other for a backlog of untested kits.
Stein ran a TV ad, titled “Survivor,” featuring Grimmett, a sexual assault survivor who worked for Stein at the N.C. Department of Justice. At one point in the 30-second ad, Grimett criticized O’Neill.
“When I learned that Jim O’Neill left 1,500 rape kits on a shelf leaving rapists on the streets, I had to speak out,” Grimmett said in the ad. She is one of the plaintiffs in the federal case, along with the Stein campaign and the company that prepared the campaign ad.
O’Neill lodged a complaint to the N.C. State Board of Elections. He cited N.C. Gen. Stat. § 163-274(a)(9), which declares it unlawful, as a Class 2 misdemeanor, “For any person to publish or cause to be circulated 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 such report is calculated or intended to affect the chances of such candidate for nomination or election.”
The elections board investigated O’Neill’s complaints and turned over its findings to Freeman’s office in July 2021. A recently released document showed that the elections board recommended closing the investigation with no charges. But the SBI launched its own investigation.
On July 7 this year, Freeman’s office alerted the Stein campaign that it planned to present a charge connected to the criminal libel law to the grand jury. Stein filed his suit two weeks later. Published reports suggest the attorney general secured his restraining order against Freeman less than an hour before the grand jury could have heard the charge.
Without a stay from the 4th Circuit, Freeman’s office could proceed with its case.
Misdemeanor charges carry a two-year statute of limitations in North Carolina. Since the “Survivor” ad stopped airing in October 2020, time is running out for any criminal charges againt Stein, Grimmett, or anyone else connected to the case.
Editor’s note: This story was updated at 1:30 p.m.