AG Josh Stein wins in court over NC law on political ads

Attorney General Josh Stein meets with his top aides in the North Carolina Department of Justice in Stein’s office in Raleigh, N.C., Thursday, July 29, 2021.

Attorney General Josh Stein meets with his top aides in the North Carolina Department of Justice in Stein’s office in Raleigh, N.C., Thursday, July 29, 2021.

A state law that bans the publication of “derogatory” falsehoods about politicians likely violates the U.S. Constitution, a federal judge said Monday, siding with Attorney General Josh Stein in a ruling that will keep Stein’s campaign from facing any criminal charges under the law for now.

Stein’s campaign faces a criminal investigation based on the law, he revealed last week. But his campaign sued, arguing in court filings and an interview with The News & Observer that the century-old law is clearly unconstitutional and that courts in numerous other states have already struck down similar laws for violating the First Amendment.

The law makes it a misdemeanor for anyone to publish or circulate a claim about a candidate for office that either is false, or was made with “reckless disregard of its truth or falsity.”

The federal judge assigned to the case, Catherine Eagles, quickly agreed that the law seems unconstitutional. A nominee of Democratic President Barack Obama, Eagles wrote that Stein’s campaign and the other plaintiffs in the case are likely to win on their argument that the law “is unconstitutional under the First Amendment to the United States Constitution.”

She granted the Stein campaign’s request for a temporary restraining order. A trial can still go forward, so the government will get the chance to argue in favor of the law if it chooses, but for now the order Monday is a win for the Democratic attorney general’s campaign.

“We look forward to this issue being resolved soon once and for all,” Stein’s campaign wrote in a statement to The N&O.

Neither Wake County District Attorney Lorrin Freeman — who told The N&O she had recused herself from the investigation — nor any of her subordinates will be allowed to bring criminal charges based on the law, at least while this order remains in place.

Freeman argued in a court filing that the Stein campaign’s lawsuit could run out the clock on the statute of limitations for the criminal investigation, so that the investigation would have to end even if the lawsuit ultimately fails.

“Plaintiffs seek to interfere with the work of a state grand jury regarding potential violations of state criminal law caused by a political ad that occurred in 2020, almost two years ago,” Freeman wrote in her court filing.

In an email Monday after the court ruling, Freeman wrote: “The North Carolina Board of Elections has argued that the law is constitutional. As prosecutors, our responsibility is to follow the evidence and apply the law regardless of who the parties may be.”

War of words over ‘rape kits’

Stein’s Republican opponent in 2020, Forsyth County District Attorney Jim O’Neill, had requested the investigation over an ad blaming O’Neill for a large backlog of untested evidence from sexual assault cases in his home county. O’Neill had criticized Stein over the same issue, since the attorney general leads the State Crime Lab, where some but not all of those evidence kits are stored and tested — or not, as has often been the case in North Carolina.

Backlogs at the State Crime Lab predated Stein, who took over as attorney general in 2017 from Roy Cooper, who is now governor. Both made efforts to address the state’s untested kits, but thousands of them still sit on shelves of local law enforcement agencies, the state has discovered in recent years.

It was the local backlogs that Stein criticized O’Neill for during their 2020 campaign, in the ad that drew O’Neill’s complaint. O’Neill contends Stein knew it wasn’t O’Neill’s duty to address, but rather local law enforcement’s.

“Now, at the 11th hour, in order to avoid criminal prosecution, Stein is seeking to have the pertinent statute ruled unconstitutional, so that politicians like himself can routinely lie to the public without repercussion or punishment,” O’Neill wrote in a text message Monday. “Let that sink in a moment, and then ask yourself if North Carolina moving forward, deserves better than Josh Stein.”

Stein has said other prosecutors worked with their local police and sheriffs to cut down the backlog, and so his ad was appropriate in calling out O’Neill.

“What O’Neill did was want to claim credit for this being his top priority, but he did not successfully move to get these kits tested,” Stein said in an interview last week. “And that is something that the voters had a right to know.”

For more North Carolina government and politics news, listen to the Under the Dome politics podcast from The News & Observer and the NC Insider. You can find it at or wherever you get your podcasts.

This story was originally published July 25, 2022 4:54 PM.

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Will Doran reports on North Carolina politics, particularly the state legislature. In 2016 he started PolitiFact NC, and before that he reported on local issues in several cities and towns. Contact him at or (919) 836-2858.

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