First Amendment Clinic files brief supporting NC attorney general's effort to end state's criminal libel law
The 1931 statute could be used to suppress disfavored political speech, the brief says.
Sarah Ludington
The Duke Law First Amendment Clinic filed an amicus brief on September 27, 2022 urging the U.S. Court of Appeals for the Fourth Circuit to reverse the District Court’s denial of preliminary injunction and rule N.C. Gen. Stat. § 163-274(a)(9) is unconstitutional on its face in Grimmett v. Freeman, a case involving potential criminal liability for a campaign advertisement.
Mary Aline Fertin '23, Rebecca Pecora '23, and Benjamin Rossi '23 drafted the brief under the supervision of Clinic Director Sarah Ludington and Supervising Attorney Amanda Martin. Chris Brook, former North Carolina Court of Appeals Judge, signed onto the brief.
The brief, which can be read in its entirety here, supports North Carolina Attorney General Josh Stein, the plaintiff. While running for office in 2020, Stein ran a corrective advertisement following accusations from his opponent that Stein had maintained a large backlog of evidence. Rather than a civil defamation action, Stein is facing application of an obscure and rarely invoked criminal libel statute, N. C. Gen. Stat. § 163-274(a).
The district court denied Steins’s motion for preliminary injunction. However, the Fourth Circuit granted an injunction pending appeal of the case. Stein is now asking the Fourth Circuit to rule that the statute is unconstitutional on its face. The statute, if left standing, has the potential to quell disfavored political speech with the threat of jail time for defendants.
The clinic’s brief argues that criminal libel laws historically were created as a tool to stifle political discussion and dissent. It emphasizes the history of criminal libel laws both nationally and locally, demonstrating that they are almost always used in a politically charged manner. The brief argues that the history of § 163-274(a) suggests that it was enacted to impermissibly chill speech, as it was enacted by the party known as the Democrats in 1931 following a bitter campaign and subsequent loss in the 1928 presidential election. This is fundamentally at odds with Supreme Court precedent, which has consistently afforded political speech the highest protections of the First Amendment, the brief argues.