A North Carolina prosecutor said Thursday that campaign-related charges won't be pursued further against Attorney General Josh Stein or his aides, one day after an appeals court ruled the political libel law her office was seeking to enforce is most likely unconstitutional.
Wake County District Attorney Lorrin Freeman said that the ongoing investigation and prosecution of potential misdemeanor violations related to a 2020 ad from Stein's campaign has been closed.
A senior assistant prosecutor in Freeman's office had been investigating allegations whether the commercial criticizing Stein's Republican challenger at the time broke a 1931 law that makes certain political speech unlawful. When it appeared last summer that Freeman's office could soon seek indictments, Stein's campaign and others sued in federal court to stop it and asked that the law be declared unconstitutional.
In August, the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, blocked enforcement of the law while an appeal was heard. On Wednesday, the same appeal panel vacated a trial judge's ruling that had refused to order Freeman to stop using the law to prosecute anyone over the disputed commercial.
A statement released by Freeman also pointed out that the two-year statute of limitations for misdemeanors had expired for this case.
“Understanding that the case was one of intense public interest, it has been the assigned prosecutor’s intent to exercise due diligence and to evaluate the evidence and apply the law without partiality from the beginning of this matter,” Freeman said. “As prosecutors, we respect the role of the court in determining the constitutionality of a duly enacted state law.”
The decision by Freeman — the local prosecutor for North Carolina's largest county — ultimately could make the Stein lawsuit moot. And Stein, who announced last month he would run for governor in 2024, will no longer have the potential for an uncomfortable prosecution from the office led by a fellow Democrat. Current Democratic Gov. Roy Cooper had sided with Stein in the legal affair, calling the potential prosecution “an unprecedented repression of free speech.”
Stein's campaign and his attorney in the case didn't immediately respond to an email seeking comment on Freeman's decision.
The litigation originated from a commercial that Stein has called a corrective to what he considered false accusations made by then-challenger Jim O’Neill. He had alleged Stein had failed to act on more than 15,000 untested rape kits since becoming attorney general in 2017. Stein’s ad accused O’Neill, the Forsyth County district attorney, of letting more than a thousand rape kits go untested.
O'Neill complained to the State Board of Elections, mentioning a law that makes it illegal to help circulate “derogatory reports” about a candidate designed to harm their election chances while “knowing such report to be false or in reckless disregard of its truth or falsity.” The elections board and ultimately Freeman's office investigated, with the help of the State Bureau of Investigation.
Wednesday's ruling overturned a decision by U.S. District Judge Catherine Eagles, who had said the law appeared to meet constitutional standards. The prevailing opinion, written by Circuit Judge Toby Heytens, said it was likely unconstitutional because “derogatory reports" could also include statements that were in fact true. And someone could tell tremendous lies about a candidate as long as they weren't specifically disclosed to hurt the person at the ballot box, Heytens wrote.
Citing the ad's subject, Freeman's statement said she hoped that efforts would continue to reduce backlogs for the testing of sexual assault kits following a 2019 state law that was designed to eliminate that inventory, saying delays continue.
“It would be my hope that the General Assembly and the Attorney General would take steps to fix these delays so that the promises of the (2019 law) become a reality," Freeman said.
