By Mitch Kokai
N.C. Attorney General Josh Stein is going to federal court to have a 91-year-old state law declared unconstitutional. The suit stems from a 2020 campaign ad challenged as false by Stein’s general election opponent.
“This is an action for declaratory judgment and injunction by Plaintiffs who have been subjected for nearly two years to intrusive law-enforcement investigations, initiated by the losing candidate in the 2020 General Election for the Office of North Carolina Attorney General,” according to the federal complaint.
Stein, the incumbent Democrat, faced Republican challenger Jim O’Neill in the 2020 general election. O’Neill was Forsyth County’s district attorney. Stein won re-election by just 13,622 votes out of 5.4 million ballots cast.
Stein and O’Neill clashed during the campaign over accusations involving untested sexual assault evidence collection kits. Each accused the other of failing to do his job in dealing with the “rape kits.”
The challenger objected to a Stein ad that “truthfully referenced O’Neill’s record of indifference to the large backlog of untested rape kits in his own jurisdiction,” according to Stein’s complaint.
Specifically, O’Neill objected to “a single line from a single Stein Campaign political advertisement,” according to the complaint. Plaintiff Juliette Grimmett, a sexual assault victim policy strategist at Stein’s N.C. Justice Department, “commented on Mr. O’Neill’s failure to act with respect to over 1,500 untested rape kits languishing in the possession of the local law enforcement authorities within Mr. O’Neill’s prosecutorial jurisdiction.”
“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.
“O’Neill claimed the ad was false and sought to retaliate,” Stein’s complaint argued. “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 resulting investigations, conducted pursuant to an archaic and never-before-used law enacted in 1931, … seek to punish Plaintiffs for core protected political speech and to chill the speech of Plaintiffs and others going forward in clear violation of the First Amendment.”
Stein is asking the federal court to declare the law unconstitutional. He’s also seeking an injunction blocking the N.C. State Board of Elections and the Wake County district attorney from taking action against the plaintiffs in connection with the disputed law.
“[T]he Statute – although it has been codified for nearly one hundred years – has never been the subject of a reported indictment or charge against any individual or entity, including any political campaign,” Stein’s complaint claimed. “Nor has it been the subject of any reported case from the North Carolina courts. In 2016, the United States Court of Appeals for the Sixth Circuit held that a nearly identical Ohio statute violated the First and Fourteenth Amendments because it was a content-based restriction that burdened core protected political speech in a manner not narrowly tailored to achieve a state interest.”
N.C. General Statutes Section 163-274(a)(9), 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.”
O’Neill’s campaign cited the disputed statute in a September 2020 complaint to the N.C. State Board of Elections. The Republican challenger’s complaint alleged “that the Stein Campaign and Attorney General Stein were in violation of the Statute on the grounds that candidate O’Neill, ‘who is the elected District Attorney for Forsyth County, has never in his career left “rape kits sitting on a shelf”’ because he was ‘never in the chain of custody as it relates to rape kits.’”
The challenger asked the state elections board to refer his complaint to Wake County’s district attorney for further action. The board conducted an investigation, including interviews in March 2021, and presented its findings to the Wake County district attorney in July 2021.
The SBI also conducted an investigation during the second half of 2021. The investigation involved “nothing further of substance” from January through May this year.
“Plaintiffs believe that enforcement action under the Statute is forthcoming,” according to Stein’s complaint. “In addition, Plaintiffs desire to continue to engage in the dissemination of information concerning political issues and candidates without the prospect of being dragged before governmental agents who seek to sit in judgment of the truth of political speech and who, in any event, can subject Plaintiffs and others to extensive and intrusive investigations under threat of criminal prosecution on subjects constituting core political speech.”
U.S. District Judge Catherine Eagles has scheduled an initial hearing on Stein’s complaint Monday in Greensboro.