Grimmett v. Circosta

• Decision Date: 09 August 2022
• Docket Number: 1:22-CV-568
• Parties: JULIETTE GRIMMETT, et al., Plaintiffs, v. DAMON CIRCOSTA, in his official capacity as Chair of the North Carolina State Board of Elections, et al., Defendants.
• Court: U.S. District Court — Middle District of North Carolina

JULIETTE GRIMMETT, et al., Plaintiffs, v. DAMON CIRCOSTA, in his official capacity as Chair of the North Carolina State Board of Elections, et al., Defendants.

No. 1:22-CV-568

United States District Court, M.D. North Carolina

August 9, 2022

MEMORANDUM OPINION AND ORDER

Catherine C. Eagles, District Judge

A North Carolina statute makes it a crime to publish or circulate false derogatory reports about political candidates in elections with knowledge the report is false or in reckless disregard for its truth and when the report is intended to affect the candidate's electoral chances. 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. The motion for preliminary injunction will be denied.

I. The Parties

The plaintiffs in this dispute are Juliette Grimmett, who appeared in the advertisement and spoke the words at issue, Doc. 1 at ¶ 8; Doc. 5-2 at ¶ 7, Ralston Lapp Guinn Media Group, which produced the ad and was involved in placing it on television, Doc. 1 at ¶ 9; Doc. 5-2 at ¶ 5, and the Josh Stein for Attorney General Campaign, which paid to produce the ad and paid for the ad's media placement. Doc. 1 at ¶ 10; Doc. 5-2 at ¶ 5. The defendant is the Wake County District Attorney, who is sued in her official capacity.^[1] Doc. 1 at ¶ 16.

II. The Statute

Section 163-274(a)(9) makes it a Class 2 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.”

N.C. Gen. Stat.§ 163-274(a)(9).

III. The Facts

In 2020, Josh Stein and Jim O'Neill ran for Attorney General of North Carolina. Doc. 5-1 at ¶ 2. Mr. O'Neill was the Forsyth County District Attorney. Id. 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. Doc. 5-2 at ¶ 5. 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.” Id. at ¶ 7. “Survivor” was broadcast on television stations in North Carolina during September and October 2020. Doc. 5-1 at ¶ 7.

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). Id. at 7-10. The attorney asked the Board to investigate the allegations, find probable cause, and refer the complaint to the Wake County District Attorney. Id. at 10.

By July 2021, the Board had completed its investigation and presented its findings and recommendation to the Wake County District Attorney's Office. Id. at ¶ 13. 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). Id. at ¶ 14; Doc. 22-1 at ¶ 18; see also § 15A-641(c) (law on presentments to grand jury for misdemeanors).

The plaintiffs cooperated with the investigations. Doc. 5-1 at ¶¶ 11-12; Doc. 18-1 at ¶ 6. An assistant District Attorney informed representatives of the plaintiffs of the upcoming grand jury proceedings and the plaintiffs promptly filed this lawsuit. Doc. 221 at ¶¶ 18-23.

IV. Procedural History

On July 21, 2022, the plaintiffs filed the complaint, Doc. 1, and moved for a temporary restraining order prohibiting enforcement of § 163-274(a)(9). Doc. 5. After notice and a quick hearing, Minute Entry 07/25/2022, the Court on July 25, 2022, issued a temporary restraining order, holding, inter alia, that the plaintiffs showed a likelihood of success on the merits of their claim that § 163-274(a)(9) facially violated the First Amendment. Doc. 16. The temporary restraining order enjoined District Attorney Freeman, in her official capacity as Wake County District Attorney, from enforcing § 163-274(a)(9) “against any person arising out of the Stein Committee's advertisement called ‘Survivor' related to the Attorney General election in the fall of 2020,” including seeking presentment or charges against those persons. Doc. 16 at 2.

V. Injunctive Relief

To obtain a preliminary injunction, a party must show that: (1) it is likely to succeed on the merits; (2) it is likely to suffer irreparable harm if the injunctive relief is denied; (3) the balance of equities tips in its favor; and (4) injunctive relief is in the public interest. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); United States v. South Carolina, 720 F.3d 518, 533 (4th Cir. 2013). “Satisfying these four factors is a high bar,” SAS Inst., Inc. v. World Programming Ltd., 874 F.3d 370, 385 (4th Cir. 2017), cert. denied, 139 S.Ct. 67 (2018), as a preliminary injunction is an “extraordinary remedy involving the exercise of very far-reaching power.” Pashby v. Delia, 709 F.3d 307, 319 (4th Cir. 2013) (cleaned up). A district court need not consider all four Winter factors if one is clearly absent. See Henderson for NLRB v. Bluefield Hosp. Co., 902 F.3d 432, 439 (4th Cir. 2018).

A party seeking a preliminary injunction must make a “clear showing” that it is likely to succeed on the merits. See Real Truth About Obama, Inc. v. FEC, 575 F.3d 342, 345 (4th Cir. 2009), vacated on other grounds, 559 U.S. 1089 (2010), reinstated in relevant part on remand, 607 F.3d 355 (4th Cir. 2010). This does not require the plaintiff to show a “certainty of success,” Pashby, 709 F.3d at 321, but it is a higher standard than a showing that serious questions are presented. See Real Truth, 575 F.3d at 346-47.

VI. Conclusions of Law

The plaintiffs contend that § 163-274(a)(9) is facially unconstitutional under the First Amendment because it regulates protected political speech in a manner not tailored to achieve a compelling state interest. Because § 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, the plaintiffs are unlikely to succeed on the merits of their constitutional claim.

A plaintiff asserting a facial challenge “must establish that no set of circumstances exists under which an act would be valid.” Fusaro v. Howard, 19 F.4th 357, 373 (4^th Cir. 2021) (cleaned up). A facial challenge is the “most difficult challenge to mount successfully,” United States v. Salerno, 481 U.S. 739, 745 (1987), and is generally disfavored. See Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 450-51 (2008) (discussing reasons facial challenges are disfavored).

Section 163-274(a)(9) criminalizes the publication or circulation of false defamatory statements made with actual malice about candidates in a primary or election when the statements are intended to affect the candidate's electoral chances.^[2] Contentbased restrictions on false defamatory speech are permitted under the First Amendment, with appropriate safeguards. See, e.g., New York Times v. Sullivan, 376 U.S. 254, 282-83 (1964) (requiring a heightened “actual malice” standard before imposing liability for defaming a public official); Gertz v. Robert Welch, Inc., 418 U.S. 323, 349 (1974) (creating some limits on liability for defaming private figures).

This rule extends to criminal libel laws, of which § 163-274(a)(9) is a subset. See Garrison v Louisiana, 379 U.S. 64, 67 (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.^[3] Id. at 74-75; see alsoFrese v. MacDonald, 512 F.Supp.3d 273, 285 (D.N.H. 2021) (holding a New Hampshire criminal libel statute was not unconstitutionally overbroad because it conformed with Garrison), appeal filed, No. 21-1068 (1st Cir. Jan. 27, 2021); Phelps v. Hamilton, 59 F.3d 1058, 1070-73 (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...