Grimmett v. Costa, decided today by Judge Catherine Eagles (M.D.N.C.), refused to issue a preliminary injunction against a N.C. statute that makes it a misdemeanor
[f]or 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.
From the opinion, which I think is likely correct as to such narrow statutes focused on libels of candidates (because [1] narrowly crafted criminal libel statutes are generally constitutional under Supreme Court precedents, even though [2] broader laws banning lies in election campaigns, including ones that aren't libelous of particular individuals, are likely unconstitutional):
The defendant, N. Lorrin Freeman, Wake County District Attorney, expects to present testimony to a grand jury for it to determine whether to initiate criminal proceedings for violation of this statute based on a political advertisement published and circulated during North Carolina's 2020 general election for Attorney General. The plaintiffs, persons and entities involved with the production and circulation of that advertisement, contend the statute on its face violates the First Amendment and seek a preliminary injunction barring enforcement.
The plaintiffs are not likely to succeed on the merits of their facial constitutional claim. The statute criminalizes false defamatory speech about public officials made with actual malice; such a statute is constitutionally permissible. Assuming a more exacting level of scrutiny applies because the statute is directed to political speech, the statute advances compelling state interests in protecting against fraud and libel in elections and is narrowly tailored to serve those interests….
In 2020, Josh Stein and Jim O'Neill ran for Attorney General of North Carolina. Mr. O'Neill was the Forsyth County District Attorney. The Stein Campaign paid Ralston Lapp to produce and coordinate the media placement of a political advertisement known as "Survivor" during the lead-up to the general election. Ms. Grimmett, one of the plaintiffs, appears in the advertisement, and states "[a]s a survivor of sexual assault that means a lot to me and 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." "Survivor" was broadcast on television stations in North Carolina during September and October 2020.
In September 2020, an attorney for the "Friends of Jim O'Neill" campaign committee filed a complaint with the North Carolina State Board of Elections asserting that "Survivor" contained a false "derogatory report" about Mr. O'Neill and violated § 163-274(a)(9). The attorney asked the Board to investigate the allegations, find probable cause, and refer the complaint to the Wake County District Attorney.
By July 2021, the Board had completed its investigation and presented its findings and recommendation to the Wake County District Attorney's Office. After further investigation by the State Bureau of Investigation, District Attorney Freeman's office decided in July 2022 to present the evidence to a grand jury for a determination of whether criminal charges arising out of the "Survivor" advertisement should be brought for violation of § 163-274(a)(9)….
[Section] 163-274(a)(9) is a criminal libel law that prohibits false defamatory speech made with actual malice and withstands scrutiny appropriate for restrictions on false defamatory political speech …. Content-based restrictions on false defamatory speech are permitted under the First Amendment, with appropriate safeguards.See, e.g., New York Times v. Sullivan (1964) (requiring a heightened "actual malice" standard before imposing liability for defaming a public official); Gertz v. Robert Welch, Inc. (1974) (creating some limits on liability for defaming private figures). {Section 163-274(a)(9) specifically prohibits publication and circulation, with actual malice, of "derogatory reports with reference to any candidate in a primary or election." The Court understands a "derogatory report" to encompass false defamatory speech about a candidate and nothing more. North Carolina case law regularly uses the word "derogatory" in defamation cases, and the North Carolina Supreme Court interprets statutes in ways that avoid constitutional problems.}
This rule extends to criminal libel laws, of which § 163-274(a)(9) is a subset. See Garrison v. Louisiana (1964). Garrison is still good law, and it squarely says that criminal libel statutes prohibiting false defamatory statements made with actual malice do not violate the First Amendment. See also Frese v. MacDonald (D.N.H. 2021) (holding a New Hampshire criminal libel statute was not unconstitutionally overbroad because it conformed with Garrison), appeal filed (1st Cir. Jan. 27, 2021); Phelps v. Hamilton (10th Cir. 1995) (upholding a Kansas criminal defamation statute as facially valid after interpreting it to require actual malice); see generally United States v. Alvarez, 567 U.S. 709, 719 (2012) (citing with approval Garrison's holding that in the context of false defamatory speech "even when the utterance is false, the great principles of the Constitution which secure freedom of expression … preclude attaching adverse consequences to any except the knowing or reckless falsehood").
Section 163-274(a)(9) meets those requirements. Publication or circulation of "derogatory reports" is only criminal if the defamatory report is false and is published or circulated with knowledge it is false or in reckless disregard for its truth or its falsity….
Because § 163-274(a)(9) is directed specifically at political speech in the context of an election, it is not enough that the statute passes muster under Garrison. Political speech in the context of an election is the kind of speech recognized as "the core of the protection afforded by the First Amendment." … But the fact that the statute meets the requirements in Garrison is not irrelevant to the analysis, nor is the fact that the regulated speech is false and defamatory. Indeed, all nine justices in Alvarez, across the plurality, concurring, and dissenting opinions, agreed that speech's falsity is relevant to the First Amendment analysis….
Here, … North Carolina is criminalizing only a subset of criminal libel. This is a category of speech for which content-based restrictions are permissible, assuming appropriate safeguards are in place. Under Garrison, the state could make all false defamatory statements made with actual malice a crime. It is thus difficult to see how the state's decision to narrow the scope of a criminal libel statute to apply to a type of speech that causes additional societal harms is unconstitutional, assuming the statute protects against those harms and does not overreach.
The weight of the state's interests here cannot be questioned. First, its historical interest in protecting citizens from defamation, does not disappear because the citizen is a candidate for political office. States have an additional compelling interest in preventing fraud and libel in elections, which "may have serious adverse consequences for the public at large," and in "preserving the integrity of [their] election process." As the Supreme Court presciently noted in 1964,
At the time the First Amendment was adopted, as today, there were those unscrupulous enough and skillful enough to use the deliberate or reckless falsehood as an effective political tool to unseat the public servant or even topple an administration. That speech is used as a tool for political ends does not automatically bring it under the protective mantle of the Constitution. For the use of the known lie as a tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected.
And, as the plurality pointed out in Alvarez, there is no constitutional issue with statutes prohibiting false statements that "protect the integrity of Government processes, quite apart from merely restricting false speech." See also id. (noting that fraud is one of the "historic and traditional categories" of false statements subject to appropriate content-based restrictions). An election is a government process of the most fundamental kind.
Section 163-274(a)(9) is narrowly tailored to meet these interests[:]….
- The law applies only to false defamatory reports made with actual malice; since New York Times, this high standard has been repeatedly recognized as sufficient to protect the First Amendment rights of those engaged in speech about public figures.
- To meet the goal of protecting government processes from fraud, the law includes a subjective intent requirement like those applied to regulate or prohibit fraudulent statements in other contexts. See generally Illinois ex rel. Madigan v. Telemarketing Assoc., Inc. (2003) (recognizing a complainant in an Illinois fraud action must show that the defendant made a knowingly false statement of material fact "with the intent to mislead the listener, and succeeded in doing so").
- To meet the goal of protecting the integrity of elections, the statute applies only to fraudulent defamatory statements with the potential to undermine an election: derogatory reports about a candidate intended to affect the candidate's electoral chances.
- The requirement of a derogatory report intended to affect a candidate's electoral chances imposes an implicit timing element: it must be speech around the time of an election. The prohibition is thus limited to false defamatory and malicious statements made during a time when false and malicious defamatory statements has the potential to gather momentum with little time for the often slower-to-surface factual counterspeech to be effective. See Whitney v. California (1927) (Brandeis, J., concurring) (recognizing counterspeech is effective only "if there be time … through discussion [to counteract] the falsehood and fallacies").
- The parties implicitly acknowledge that the statute targets only false statements about verifiable facts in elections. It does not restrict pure opinion or negative commentary.
- The law is not directed to a particular subject, unlike the statute at issue in Alvarez (noting the dangers of "compil[ing] a list of subjects about which false statements are punishable"). It applies only to false defamatory statements about candidates.
Because the speech that § 163-274(a)(9) prohibits—false defamatory speech about candidates intended to affect elections—must be made with actual malice and must be factual, the law provides appropriate "breathing space" for protected speech. The law does not trigger "absolute accountability for factual misstatements in the course of political [campaigns]."
Indeed, not even all falsehoods stated with actual malice fall within the statute's reach; it provides two additional limitations on its application: the maliciously false statement must be one, derogatory, i.e., defamatory, and two, made with the intent to "affect the chances" of an electoral candidate. The statute is narrowly tailored to promote compelling state interests in protecting candidates for office from false defamatory statements, protecting governmental processes from fraud, and protecting elections from being undermined by "those unscrupulous enough and skillful enough to use the deliberate or reckless falsehood as an effective political tool."
The plaintiffs cite several recent cases decided in the wake of Alvarez and holding that state political false statement laws violated the First Amendment; they contend the cases support a finding that § 163-274(a)(9) is facially unconstitutional. Those laws each incorporated an actual malice requirement and the Ohio, Minnesota, and Massachusetts laws had similar provisions limiting application to speech that was intended to influence an election.
But § 163-274(a)(9) has a further limitation; it includes a requirement that the speech be defamatory. As each of the courts recognized when invalidating the laws at issue, those laws did not have this limitation and criminalized all false statements intended to influence elections. Section 163-274(a)(9) thus applies more narrowly than each of the laws held to be unconstitutional. This additional requirement moves the restricted speech back into a "historic and traditional category of expression" long recognized as subject to appropriate content-based restrictions.
The plaintiffs also contend that the five tailoring concerns the Sixth Circuit identified in Susan B. Anthony List when reviewing Ohio's political false statement law apply here. But those tailoring factors are not determinative for several reasons. First, the list of factors reads more like a means to bureaucratically undermine the holdings in Garrison, and New York Times, by making it impossible for a state to constitutionally regulate false and malicious lies about a candidate made during a campaign. Second, the Sixth Circuit would require at least two means of tailoring that appear mutually exclusive. {The Sixth Circuit would require a criminal libel statute to require quick action during the lead-up to an election, while at the same time imposing a detailed and complicated set of multiple safeguards and procedural undertakings before such quick action could be taken.} Third, the Sixth Circuit's approach disregards the Supreme Court's cautions that "a facial challenge must fail where the statute has a plainly legitimate sweep" and that courts "must be careful not to go beyond the statute's facial requirements and speculate about 'hypothetical' or 'imaginary' cases."
Putting aside those problems, the factors identified in Susan B. Anthony List do not apply with equal force to § 163-274(a)(9). The tailoring issues there, see Susan B. Anthony List, stemmed in part from the Ohio law's broader sweep, which included all false non-material statements intended to influence an election…
In evaluating whether the statute provides sufficient breathing room, it is appropriate to account for the possibility that government officials might misuse § 163- 274(a)(9) to prosecute political opponents, which could chill protected speech. But this risk is not enough to facially invalidate the statute. There are institutional protections from such prosecutorial abuses. The difficulties in succeeding on meritless charges, electoral consequences to prosecutors who bring them, and civil suits for malicious prosecution serve as guardrails against government officials pursuing opportunistic and meritless prosecutions against political opponents.
There is another protection for protected speech: the courts are available to curb overzealous application of the statute to particular speech if that application would violate the First Amendment. The North Carolina Supreme Court has shown its willingness to do so, both by finding statutes to violate the First Amendment as applied and to require jury instructions that bring application of a regulation of speech within the bounds of the Constitution. {The Court expresses no opinion as to whether application of § 163-274(a)(9) to the arguably metaphorical speech here would be unconstitutional. [Recall that the court here is dealing only with a facial challenge to the statute. -EV]} …
False malicious defamatory speech can be "used as an effective political tool to unseat the public servant or even topple an administration" and can lead to volatile, unstable, and even violent results "at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected." Garrison. Because § 163-274(a)(9) is a criminal libel law that falls within a category of speech long subject to appropriate content-based restrictions; satisfies the requirements set forth in Garrison; and is appropriately narrowed to address legitimate and substantial governmental and public interests and to provide breathing room for protected speech, the plaintiffs' constitutional claim that § 163-274(a)(9) facially violates the First Amendment is not likely to succeed on the merits.
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