Grimmett v. Freeman
| Decision Date | 25 August 2022 |
| Docket Number | 22-1844 |
| Parties | JULIETTE GRIMMETT; RALSTON LAPP GUINN MEDIA GROUP; JOSH STEIN FOR ATTORNEY GENERAL CAMPAIGN, Plaintiffs-Appellants, v. N. LORRIN FREEMAN, in her official capacity as District Attorney for the 10th Prosecutorial District for the State of North Carolina, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
UNPUBLISHED
In 2020, Josh Stein and Jim O'Neill were engaged in a heated campaign to serve as attorney general of North Carolina. The Stein campaign ran an advertisement the O'Neill campaign believes was false. Stein ultimately won the election.
Now nearly two years later, the district attorney's office in Wake County has indicated that it plans imminently to seek an indictment against Josh Stein's campaign (and others involved in producing the advertisement) under a state criminal libel statute. The potential targets of the investigation sought a preliminary injunction against the district attorney, which the district court denied. The Stein campaign and its affiliates appealed and seek an injunction pending appeal.
We conclude plaintiffs have satisfied the demanding standard for obtaining an injunction pending appeal. Most critically, plaintiffs have made a "strong showing that [they are] likely to succeed on the merits" of their First Amendment challenge. Nken v. Holder, 556 U.S. 418, 426 (2009) (quotation marks omitted).
At the outset, we note that neither the district court nor the district attorney have suggested that abstention in favor of the state criminal process is appropriate in this case. In the First Amendment context, the Supreme Court has recognized that a plaintiff who has "alleged a credible threat of enforcement" may generally "bring a preenforcement challenge" in federal court. Susan B. Anthony List v. Driehaus, 573 U.S. 149, 159 (2014). Although federal courts must usually abstain from exercising their jurisdiction to issue injunctive relief if a "state criminal prosecution[]" has already begun, Younger v. Harris, 401 U.S. 37, 53 (1971), abstention is not warranted when "proceedings of substance on the merits have taken place in federal court" before any relevant state proceeding has occurred. Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 238 (1984) (quotation marks omitted). And here it appears undisputed that no grand jury proceedings had commenced before the district court considered the merits of this case when it denied the motion for a preliminary injunction.
We therefore turn to the merits of plaintiffs' First Amendment challenge. The North Carolina statute at issue criminalizes publishing "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." N.C. Gen. Stat. § 163-274(a)(9). Because this statute regulates "core political speech," First Amendment concerns are at their "zenith" and we must subject the statute to particularly careful constitutional examination. Buckley v. American Const. Law Found., Inc., 525 U.S. 182, 186-87 (1999) (quotation marks omitted).
Like the district court, we acknowledge that a nearly 60-year-old decision of the Supreme Court states that a "lie, knowingly and deliberately published about a public official" may potentially be the subject of a criminal prosecution. Garrison v. Louisiana, 379 U.S. 64, 75 (1964) (emphasis added). Plaintiffs have questioned whether that holding remains viable under modern First Amendment doctrine. But, even accepting Garrison as good law, that same decision made clear that the First Amendment does not permit a State to criminalize "true statements," even those "made with 'actual malice.'" Id. at 78. And it appears the law challenged here does just that by criminalizing a "derogatory report" made either "knowing such report to be false or in reckless disregard of its truth or falsity."[1]
Plaintiffs also have demonstrated that irreparable harm is likely absent an injunction. Infringing constitutional rights generally constitutes irreparable harm, see Ross v. Meese, 818 F.2d 1132, 1135 (4th Cir. 1987), and plaintiffs have credibly alleged that their political speech will be chilled should a prosecution go forward. For instance, at least one of the named plaintiffs in this case-the public relations firm behind the advertisement-has indicated that a criminal prosecution would require it to "reconsider" whether it would "continue to work with North Carolina campaigns and candidates," D. Ct. ECF 5-2 at 4.
On the other side of the ledger, the district attorney primarily contends that the two-year limitations period is about to run, jeopardizing her power to prosecute should she ultimately prevail in this appeal. It appears that any such injury is, at least to some extent, self-inflicted, because the district attorney has not adequately explained why it was necessary to wait so long to bring charges in a case where the alleged crime was broadcast on television nearly two years ago. In any event, plaintiffs have represented to this Court that they are willing to agree to a reasonable stipulation tolling the limitations period, mitigating the impact of any such injury.[2] And to the extent the State has an interest in regulating false campaign speech (in this case or generally), the district attorney has not explained why an ordinary civil defamation action is inadequate to the task.
An injunction pending appeal also serves the broader public interest. Candidates currently running for office in North Carolina might well be chilled in their campaign speech by the sudden reanimation of a criminal libel law that has been dormant for nearly a century-harming the public's interest in a robust campaign. After all, "it is our law and our tradition that more speech, not less, is the governing rule," Citizens United v. FEC, 558 U.S. 310, 361 (2010), and that the general remedy for even "falsehood and fallacies" "is more speech, not enforced silence," Linmark Assocs. v. Willingboro Township, 431 U.S. 85, 97 (1977) (quoting Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring)).
For these reasons, plaintiffs' motion for an injunction pending appeal is GRANTED and it is ORDERED that defendants are enjoined from taking any action to enforce N.C. Gen. Stat. § 163-274(a)(9) against plaintiffs pending further order of this Court.
The motion to expedite this appeal is GRANTED IN PART. Specifically, the Clerk is directed to set a briefing schedule that will allow this appeal to be argued during this Court's regular December 2022 sitting.
Entered at the direction of Judge Heytens with the concurrence of Judge Diaz. Judge Rushing filed a separate dissenting opinion.
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