A problematic law about political lies threatens to snag NC’s attorney general

Politicians lie. It’s something voters have even come to expect on the campaign trail, in campaign ads and in office. But what constitutes a lie, and should those lies be punished? Those questions are at the center of a case involving North Carolina Attorney General Josh Stein, and it threatens to throw his office and the 2024 race for governor into chaos.

A grand jury in Wake County decided Monday that the district attorney’s office could pursue charges against Stein and two of his top aides, based on a campaign ad from the 2020 election cycle that called out his opponent, Republican candidate Jim O’Neill. Wake DA Lorrin Freeman said her office will decide as early as next month whether to charge Stein with anything, but Stein did get a victory late Tuesday when the Fourth Circuit granted a preliminary injunction to stop the investigation from moving forward.

The offending advertisement from Stein featured a sexual assault survivor saying that there were more than 1,500 untested rape kits in Forsyth County, where O’Neill is the district attorney. O’Neill said that testing rape kits is the responsibility of Forsyth County’s police departments, not his, then filed a complaint based on a 1931 state law that makes it illegal to knowingly circulate false and “derogatory” reports about candidates.

It’s a matter of weeks before the statute of limitations on the complaint runs out, and Freeman appears to be indicating that as long as this law is on the books, her office will take it seriously. The North Carolina Board of Elections has recommended the case be dropped altogether. U.S. District Judge Catherine Eagles initially ruled that the law was likely unconstitutional, then reversed herself and allowed the case against Stein to move forward.

Meanwhile, the North Carolina Democratic Party has called on Freeman to investigate claims O’Neill made about Stein. (Freeman declined to do so, telling The Associated Press last week that party officials hadn’t followed normal procedures and filed its own complaint with the board of elections.) Earlier in the 2020 election, O’Neill came under fire for an ad against opponent Christine Mumma that spread inaccurate claims about an exonerated man.

This isn’t the first time that the truthfulness of a campaign statement has been questioned in North Carolina. In 2014, Roy Cooper settled a libel lawsuit with the 2000 Republican candidate for attorney general Dan Boyce, who lost to Cooper.

Clearly, campaign ads have long stretched the boundaries of truth. But questions surrounding the ad and law are significant enough that Freeman should consider whether it’s a wise use of resources to pursue the Stein case.

We’re also troubled that the repercussions in this case seem disproportionate to behavior that has been commonly accepted in the political arena. A judge could remove Stein from office, according to the 1931 law, and the Republican-led legislature could have room to initiate impeachment proceedings. Already, Stein is in headlines about indictments that could continue for many months if the case, and his inevitable appeal of the law’s constitutionality, winds its way through courts.

We’re not so sure, however, that we’re willing to go as far as Cooper, who said in a statement Tuesday: “The idea that the government can criminally prosecute a person for expressing a legitimate political opinion runs counter to the First Amendment and threatens anyone who wants to criticize a public official.”

We think legitimate public opinion is fine, but politicians too often mislead voters with ads that are iffy at best and often downright false. We like the idea of politicians, including Josh Stein, thinking twice before deciding how close they want to come to crossing that line. But we’re uncertain this law, and this prosecution, provide the best path to get there.

Correction: A previous version of this editorial said the 1931 law does not have “the same guardrails current libel laws have in place, including the standard of actual malice.” The law does apply the standard for actual malice that the U.S. Supreme Court established in New York Times v. Sullivan. We regret the error.