Challenge to N.C. Statute That Bans Lies About Candidates
Grimmett, Ralston Lapp Guinn Media Group & Josh Stein for Attorney General Campaign v. Circosta (M.D.N.C.), filed yesterday, seeks to invalidate N.C. Gen. Stat. § 163-274(a)(9), which makes it a crime:
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.
Note that this is limited to lies about candidates, so it’s similar to a criminal libel statute, albeit one enforced through the N.C. State Board of Elections rather than through the normal criminal justice process; according to the News & Observer (Will Doran), Attorney General Stein claims that the law “is nearly a century old and yet no one had been prosecuted under it,” at least until the complaint against his campaign.
Here’s the argument supporting the request for a temporary restraining order against the enforcement of the statute (I also plan on posting the response, when it’s filed):
After U.S. v. Alvarez, courts are required to consider First Amendment challenges recognizing that even false speech is entitled to constitutional protection, particularly in the context of political speech. Thus, in Susan B. Anthony List v. Driehaus (6th Cir. 2016), the Sixth Circuit …, following Alvarez, ultimately struck down the Ohio laws [that are similar to the N.C. law] as “content-based restrictions that burden core protected political speech and [which] are not narrowly tailored to achieve the state’s interest.”
In so holding, the Sixth Circuit found that “Ohio’s political false-statements laws target speech at the core of First Amendment protections—political speech.” The laws reached “not only defamatory and fraudulent remarks, but all false speech regarding a political candidate, even that which may not be material, negative, defamatory, or libelous.” … [T]he court found that the Ohio laws did not “pass constitutional muster because they are not narrowly tailored in their (1) timing, (2) lack of a screening process for frivolous complaints, (3) application to non-material statements, (4) application to commercial intermediaries, and (5) over-inclusiveness and under-inclusiveness.”
With regard to timing, the court found that there was “no guarantee the administrative or criminal proceedings will conclude before the election or within time for the candidate’s campaign to recover from any false information that was disseminated.” The frivolous complaint issue arose from the fact that they were not restricted “to state officials who are constrained by explicit guidelines or ethical obligations,” but could be made by “political opponents.” The failure of the statute to facially exclude non-material falsehoods, rendered the statute “not narrowly tailored to preserve fair elections.” The court also found fault that the statute applied “not only to the speaker of the false statement,” but also potentially to “commercial intermediaries.” Finally, the Sixth Circuit found the law “both over-inclusive and underinclusive,” by virtue of the fact that it could damage an accused campaign while at the same time failing to timely penalize
Article from Reason.com