All of you know I am not crazy about Josh Stein. Still, this action by a rogue DA against him over an unconstitutional NC General Statute is a direct assault on our constitution and an attempt to stifle the public’s right to speak freely.
Isn’t the Republican Party suppose to be the bastion of the constitution and free speech in America? Why have they not stood up against this blatant attempt to suppress discourse?
Former NC Attorney General Republican Candidate Jim O’Neill looks like a sore loser and a whiny snowflake.
If the best you can do is use a 90-year-old unconstitutional GS statute that no one enforces to attack a candidate that beat you, then maybe your calling is not in politics…-CH
A ruling on February 8- 2023, from the Federal Court of
A 90-year-old North Carolina law makes it a crime to publish a “derogatory report” about candidates for public office where the speaker “know[s] such report to be false or” acts “in reckless disregard of its truth or falsity.” N.C. Gen. Stat. § 163-274(a)(9).
Plaintiffs assert this statute violates the First Amendment. The district court denied a preliminary injunction because it determined plaintiffs were unlikely to succeed on the merits.
We disagree. Not only have plaintiffs shown a likelihood of success, “it is difficult to imagine them losing.”
Alabama Ass’n of Realtors v. Department of Health & Hum.
Servs., 141 S. Ct. 2485, 2488 (2021).
Accordingly, we vacate the district court’s order and remand for further proceedings.
The Federal Court found…
We conclude the Act is likely unconstitutional for two reasons. First, the Act appears to criminalize at least some truthful statements—a result the First Amendment forbids.
Second, even if the Act reaches only false statements, it makes impermissible content-based distinctions in selecting which speech to forbid
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT-
Lorrin Freeman’s Last Stand
Democratic insiders say the Wake County district attorney’s quixotic prosecution of Attorney General Josh Stein has dimmed her once-bright political future. They can’t figure out why she’s doing it.
by Jeffrey BillmanSeptember 6, 2022
In the weeks since Attorney General Josh Stein asked a federal court to save him from a looming indictment, two things have become clear.
First, the obscure, never-enforced law Wake County District Attorney Lorrin Freeman believes Stein broke is, at best, constitutionally dubious.
Second, the high-profile prosecution over an alleged campaign lie about untested rape kits has turned Freeman, once a contender to succeed Stein if he runs for governor in 2024, into a pariah among many of her fellow Democrats.
A federal appeals court temporarily halted the case last month, but not before a grand jury signaled its intent to charge the Democratic attorney general with a second-degree misdemeanor, gifting Republicans with headlines that will surely haunt Stein if he pursues higher office.
To many Democrats, it’s an unpardonable betrayal.
In statements to The Assembly, state Democratic Party spokesperson Kate Frauenfelder called Freeman’s investigation “bogus,” while Stein said it was “unfounded and bizarre.”
Privately, party insiders are more pointed. “I don’t see how she ever wins a primary again,” a party operative told The Assembly.
Like others interviewed for this article, the operative declined to speak on the record because of the ongoing court battle and intraparty resentments. Freeman is the former chair of the Wake County Democrats and the daughter of Franklin Freeman, a former state Supreme Court justice and senior adviser to former North Carolina Democratic Govs. Jim Hunt and Michael Easley.
But confusion underlies their anger: Why is Freeman risking her political future on this?
“Absolutely no one I’ve talked to gets it at all,” Blair Reeves, the head of the liberal advocacy group Carolina Forward, said in a text message. “[I’m] just totally mystified why she wanted to politically impale herself.”
Freeman told The Assembly that she is “firmly committed to the rule of law and to the principle that politics cannot infect our judicial system.”
But The Assembly’s review of this unprecedented prosecution—based on more than 20 interviews with attorneys, experts, and political insiders—shows that for a district attorney determined to project political indifference, there’s no escaping politics.
And if she succeeds in prosecuting Stein, the consequences will stretch far beyond the attorney general.
“Prosecutions brought by losing candidates would proliferate,” Michael Gerhardt, a constitutional law expert at the UNC-Chapel Hill School of Law, told a federal court in July, “and courts, not the voting public in this state, would become the final arbiters of the claims made in elections.”
The case began with an issue that consumed much of Stein’s first term.
In 2018, the state’s first inventory of untested sexual assault kits found more than 15,000—possibly the most in the country. In response, the General Assembly authorized Stein to create a system for tracking kits and, in 2019, allocated $6 million to speed up testing.
By then, Forsyth County District Attorney Jim O’Neill was running for attorney general and criticizing Stein for his handling of the backlog.
“Stein has stood on the sidelines almost his entire term while more than 15,000 rape kits have sat on the shelves of the lab Stein is responsible for, collecting dust,” O’Neil tweeted in October 2019.
That was false. Stein had prioritized testing rape kits since taking office in 2017. In addition, the untested kits weren’t on the State Crime Lab’s shelves; they were controlled by local law enforcement.
But O’Neill repeated versions of that line to several media outlets during the campaign. On September 3, 2020, O’Neill said during a WUNC interview that Stein had “done nothing about the rape kits” before O’Neill entered the race.
Three weeks later, Stein’s campaign hit back with an ad called “Survivor,” which highlighted untested rape kits in Forsyth County.
“When I learned that Jim O’Neill left 1,500 rape kits sitting on a shelf, leaving rapists on the street, I had to speak out,” a woman identified as Juliette told viewers. They were not told that Juliette Grimmett was the North Carolina Department of Justice’s sexual assault victim policy strategist.
O’Neill’s campaign filed a complaint with the North Carolina State Board of Elections calling the ad a “direct lie.”
The complaint asked the board to investigate whether Stein had violated a 1931 criminal libel statute that prohibits the dissemination of “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 pointed out that law enforcement agencies, not district attorneys, control the rape kits. DAs can’t dictate when the police have them tested.
Stein’s team countered that the state constitution directs DAs to advise law enforcement in their district, which means O’Neill could have been more proactive.
“The ad was true, and I stand by it,” Stein told The Assembly last week.
In November 2020, Stein defeated O’Neill by fewer than 14,000 votes.
In May 2021, elections board attorney Candace B. Marshall concluded that while state law didn’t require O’Neill to oversee rape kit testing, it didn’t prohibit him from acting “to assist in eliminating those remaining untested kits.” Thus, the truth of the ad was ambiguous.
Marshall also suggested that if Stein broke the law, O’Neill had, too. He’d made statements “similarly worded” to the one he complained about.
The elections board decided to stay out of the fact-checking business; it recommended closing the case.
Freeman rejected the board’s advice. On June 23, 2021, she asked the State Bureau of Investigation to open its own probe, saying the elections board “neglected to take investigative steps” her office had requested. She didn’t specify the missing steps, but the elections board did not interview Stein or anyone from Forsyth County law enforcement.
More than a year later—after Freeman’s Democratic primary had concluded—Assistant District Attorney David Saacks told Stein’s lawyers that he planned to seek an indictment. (Freeman said suggestions that she slowed the investigation for political reasons are “in bad faith and simply not true.”)
That set off a month-long legal scramble, as Stein’s team asked federal courts to block the district attorney’s office from taking the case to a grand jury. Finally, on August 23, the Fourth Circuit Court of Appeals issued a temporary injunction until at least December, when it will hear arguments on the law’s constitutionality.
But a day earlier, Wake County’s grand jury had issued a presentment—a precursor to a misdemeanor indictment—against Stein, his chief of staff, and his campaign manager.
O’Neill wasn’t the first candidate to complain to the elections board about being a victim of criminal libel. But Stein became the first person in the law’s 91-year history that a district attorney’s office saw fit to prosecute.
After the Fourth Circuit’s ruling, Gov. Roy Cooper condemned Freeman’s actions as “an unprecedented repression of free speech that should trouble everyone.”
Over the last 15 years, courts have struck down similar criminal libel laws in Ohio, Minnesota, Massachusetts, and Washington state, citing potential threats to political discourse.
Freeman dismissed the claim that prosecuting Stein will chill political debate. “I respect Governor Cooper tremendously, but the question raised in this case is whether candidates or campaigns have a constitutional right to lie to the public,” she told The Assembly in an email.
In politics, however, lies are often in the eye of the beholder. The state elections board and two media fact-checkers declined to call Stein’s ad false, for example, but Freeman’s office saw it differently.
Critics point to a Republican ad that accused Senate candidate Cheri Beasley of freeing a child pornographer while on the state Supreme Court. Television stations in Charlotte pulled down the ad in June, after Democrats complained that it was false. But Republicans were adamant that every word was accurate.
As chief justice of the state Supreme Court, Beasley joined the court’s majority in its 2019 ruling that a sheriff’s deputy illegally accessed incriminating images, which set in motion events that led to the man’s release. But technically, the state Supreme Court didn’t free the man. It sent the case back to a lower court, which ultimately vacated the conviction.
A politically motivated prosecutor could construe the ad’s claim as a lie, critics say. The same is true of countless attacks in TV ads, mailers, interviews, and speeches each election.
Gerhardt, the UNC-CH constitutional scholar, said in a court filing that allowing Stein’s prosecution would “produce chaos.” He told The Assembly that North Carolina’s statute “conflicts with every major First Amendment law upheld by the Supreme Court since the 1930s.”
Freeman said the law’s constitutionality is “most appropriately addressed by a court and not by unilateral determination by a prosecutor.”
She also told The Assembly that she is “concerned with the application of the rule of law,” not whether charging Stein would open the floodgates to similar cases. Asked what distinguishes Stein’s ad from other misleading political statements, Freeman said she cannot discuss “the strength of the evidence or the merits of this case while it is a pending matter.”
Last month, her office spurned state Democrats’ request to investigate two “objectively false” statements O’Neill made in September 2020: that Stein had done “nothing” about rape kits, and that he’d sued the Trump administration over the border wall.
The Democratic Party still believes the law is unconstitutional, party attorney John R. Wallace explained in an August 10 letter to Freeman. But until that question is settled, what’s fair for one party should be fair for the other.
“Despite their request for unique treatment in this matter,” Freeman responded in a media statement, “our office cannot move forward with a prosecution without an investigation.”
She offered a suggestion: “Consistent with the normal process of an investigation into election law violations, the [Democrats] can direct their concerns and file a complaint with the North Carolina State Board of Elections, who can then conduct such an investigation.”
Wallace countered that nothing in state law required Freeman’s office to wait for an investigation from the elections board—which Freeman’s office ignored to pursue Stein—especially since the board’s report in its Stein investigation noted the similarities between the two candidates’ statements.
Freeman told The Assembly that she didn’t review the elections board’s report, and she wasn’t involved in the decisions to investigate Stein and not O’Neill. She says Saacks, the assistant district attorney, made those calls.
“From the outset, I anticipated that accusations would be made that this investigation was motivated by personal connections to either Jim O’Neill or Josh Stein,” Freeman said in an email. “For that reason, I recused myself and asked a well-respected, veteran prosecutor to handle the investigation and prosecution.”
Many in Stein’s orbit are skeptical about how far removed Freeman actually is from the case.
In a court filing, for example, Stein attorney Ripley Rand said Saacks had to ask Freeman about a proposal to pause the case while federal courts weighed the law’s constitutionality.
Freeman told The Assembly that Saacks approached her because Stein’s team planned to sue her if they didn’t reach a deal. Freeman said she told Saacks to make “no special accommodations.” Saacks rejected the proposal, and Stein sued.
But the bigger question is why Freeman kept the case in her office after recusing herself, rather than handing it off to another district attorney—like her predecessor, Colon Willoughby, did during the investigation into Gov. Easley’s campaign finances.
Freeman says she initially tried to find a former DA to take it on, but had no luck. And she believed any district attorney would face accusations of bias. So Freeman tapped Saacks, who she said “had a reputation beyond reproach.”
But Saacks, though well-regarded and seen as apolitical, still reports to Freeman.
And critics say Freeman has a conflict other DAs don’t: Five sources told The Assembly that Freeman and O’Neill are very good friends.
Freeman denies that. “Neither Jim and I, nor our families, socialize,” she told The Assembly.
But as Axios Raleigh reported last month, O’Neill’s wife and business partner donated nearly $3,000 to Freeman’s campaign. And Freeman and O’Neill have worked together on the executive committee of the Conference of District Attorneys, the powerful, state-funded organization that represents prosecutors’ interests.
Over the last decade, the conference has lobbied against the Racial Justice Act, ending juvenile life without parole, and barring the death penalty for people with “severe mental disability.” O’Neill was the committee’s president in 2020 and 2021.
Former prosecutors and other attorneys describe the conference’s leadership as “tight-knit.” At least a half-dozen insiders—not all Stein loyalists—told The Assembly they believe Stein’s prosecution is payback for going after O’Neill.
Kimberly Overton Spahos, the director of the Conference of District Attorneys, did not respond to a request for comment.
It wasn’t just the ad, the insiders said. It was that other district attorneys were vulnerable to the same attacks over rape kits. The same 2018 inventory that found 1,500 untested rape kits in Forsyth County found more than 1,900 in Wake County—at the time, the most in the state.
“She seems to have a special relationship with O’Neill, but what I think is really behind this is that when you attack one DA, you attack them all,” a former North Carolina Democratic Party leader told The Assembly. “That’s how they view it.”
“[Freeman] told several people early on that an example needed to be made about Josh,” added a Democrat familiar with the case. “That the reason this [case] is different, the reason he’s getting charged when nobody else has, is because he attacked a DA, and you can’t do that.”
“This is absolutely untrue,” Freeman responded when The Assembly shared that quote. “I have campaigned since 2005 on the promise that I will always seek to do the right thing and not allow politics to infect the administration of justice.”
Colon Willoughby, who prosecuted Agriculture Commissioner Meg Scott Phipps in 2003 for lying about illegal campaign contributions and former House Speaker Jim Black for accepting bribes in 2007, is no stranger to high-profile political cases.
Every political case carried the risk of recriminations, he says. And every case put him under a microscope.
“Someone is going to criticize what you do and say,” Willoughby said. ”It’s like Goldilocks and the Three Bears. The porridge is too hot or too cold.”
But Willoughby charged Black and Phipps for felonies related to corruption. Freeman wants to charge Stein with lying in a political campaign ad.
“Falsehoods and lies in politics—are you kidding?” said John Merritt, a lobbyist and former co-chief of staff to Gov. Easley. “It’s the same as telling someone there may actually be gambling in Las Vegas.”
“As I understand it, the DA’s office has invested huge amounts of time and resources investigating this like it was, you know, some Mexican cartel running drugs,” said former state Supreme Court Justice Robert Orr.
Willoughby says the system often seems inefficient, given the resources misdemeanors require.
“It’s probably easy for us to look at any case and say, ‘What is the return on investment?’” he told The Assembly. But DAs prosecute “because the legislature said these are the laws, and we’re supposed to apply them evenly.”
Freeman’s critics see nothing even about her application of the law. They point out that she didn’t seek indictments against Republicans who faced allegations related to campaign finance violations or election fraud, including Postmaster General Louis DeJoy, former congressional candidate Mark Harris, and former state Rep. David Lewis. (Lewis pleaded guilty to federal charges.)
Stein remains Cooper’s heir apparent, and many party leaders see him as their best option to defeat Republican Lt. Gov. Mark Robinson, who is expected to run in 2024. They say Freeman is damaging Stein’s prospects over nothing.
Freeman knows she’s made political enemies. (It’s perhaps telling that her only fundraiser for the general election will take place at the home of a Raleigh Republican.) But she says she’s not changing parties.
And she thinks it should be obvious that she has no ax to grind.
“I believe if people really stop and think about whether it makes any sense for me, a lifelong Democrat in a county that has become increasingly Democratic, to target someone who many believe will be the next Democrat nominee for governor, they would realize it is completely irrational to think I would pursue this out of some personal motivation,” Freeman wrote.
Freeman says she’s doing what the law requires, and she won’t let “public pressure or political influence” get in the way.
If that’s the hill her political career dies on, so be it.
Jeffrey Billman reports on criminal justice and politics from Durham. He is the former editor-in-chief of INDY Week. Tips: firstname.lastname@example.org.