GRIMMETT v. CIRCOSTA

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

JULIETTE GRIMMETT, et al., )

)

Plaintiffs, )

)

v. ) 1:22-CV-568

)

DAMON CIRCOSTA, in his official )

capacity as Chair of the North Carolina )

State Board of Elections, et al., )

)

Defendants. )

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).

1 The plaintiffs initially named the members of the North Carolina State Board of Elections

in their official capacities as well, Doc. 1 at ¶¶ 11–15, but the plaintiffs have since voluntarily

dismissed these defendants. Doc. 17.

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. 22-

1 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 (4th

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 Content-

based 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

2 Section 163-274(a)(9) specifically prohibits publication and circulation, with actual malice,

of “derogatory reports with reference to any candidate in a primary or election.” The Court

understands a “derogatory report” to encompass false defamatory speech about a candidate and

nothing more. See, e.g., 50 Am. Jur. 2d Libel & Slander § 2 (2022) (“A cause of action for

defamation is based on the transmission of derogatory statements[.]”). North Carolina case law

regularly uses the word “derogatory” in defamation cases, see, e.g., Badame v. Lampke, 242 N.C.

755, 757, 89 S.E.2d 466, 468 (1955); Boyce & Isley, PLLC v. Cooper, 153 N.C. App. 25, 32, 568

S.E.2d 893, 900 (2002); Nucor Corp. v. Prudential Equity Grp., LLC, 189 N.C. App. 731, 738,

659 S.E.2d 483, 487 (2008), and the North Carolina Supreme Court interprets statutes in ways

that avoid constitutional problems. See, e.g., State v. Hilton, 378 N.C. 692, 699–700, 862 S.E.2d

806, 812 (2021).

malice do not violate the First Amendment.3 Id. at 74–75; see also Frese 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 knowing or reckless falsehood”).

Section 163-274(a)(9) meets those requirements. Publication or circulation of

“derogatory reports” is only criminal if the defamatory report is false and is published or

circulated with knowledge it is false or in reckless disregard for its truth or its falsity. See

§ 163-274(a)(9).

This, the defendants say, is the end of it: if false defamatory speech published

with actual malice is not entitled to First Amendment protection and if a criminal libel

statute meets the constitutional requirements set forth in Garrison and New York Times,

additional scrutiny is not required just because the statute prohibits only certain kinds of

3 Courts that have invalidated criminal libel laws under the First Amendment have done so

when the laws criminalized more speech than Garrison allows. See Mangual v. Rotger-Sabat,

317 F.3d 45, 65–67 (1st Cir. 2003); Fitts v. Kolb, 779 F. Supp. 1502, 1514–16 (D.S.C. 1991);

Myers v. Fulbright, 367 F. Supp. 3d 1171, 1175–78 (D. Mont. 2019); In re I.M.L v. State, 61 P.

3d 1038, 1042–48 (Utah 2002); Gottschalk v. State, 575 P.2d 289, 296 (Alaska 1978); State v.

Turner, 864 N.W.2d 204, 207–09 (Minn. Ct. App. 2015).

false defamatory speech. The plaintiffs disagree. They cite the presumption against

governmental content-based restrictions on speech, see, e.g., Alvarez, 567 U.S. at 716–17

(“[T]he Constitution demands that content-based restrictions on speech be presumed

invalid and that the Government bear the burden of showing their constitutionality”)

(cleaned up), and several post-Alvarez decisions finding that state statutes similar to

§ 163-274(a)(9) violate the First Amendment. See Susan B. Anthony List v. Driehaus,

814 F.3d 466, 476 (6th Cir. 2016); 281 Care Comm. v. Arneson, 766 F.3d 774, 785 (8th

Cir. 2014) (281 Care Comm. II); see also Commonwealth v. Lucas, 34 N.E.3d 1242, 1245

(Mass. 2015) (invalidating law under a cognate provision of the Massachusetts

Constitution); Rickert v. State, 168 P.3d 826, 827 (Wash. 2007) (preceding Alvarez).

Because § 163-274(a)(9) is directed specifically at political speech in the context

of an election, it is not enough that the statute passes muster under Garrison. Political

speech in the context of an election is the kind of speech recognized as “the core of the

protection afforded by the First Amendment.” McIntyre v. Ohio Elections Comm’n, 514

U.S. 334, 346 (1995); see also Buckley v. Valeo, 424 U.S. 1, 14–15 (1976) (per curiam);

Eu v. S.F. Cnty. Democratic Cent. Comm., 489 U.S. 214, 223 (1989) (“[T]he First

Amendment ‘has its fullest and most urgent application’ to speech uttered during a

campaign for political office.”) (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272

(1971)). The cases are legion that recognize the need to tread carefully when the

government attempts to regulate political speech or speech on matters of public concern.

See generally McIntyre, 514 U.S. at 346–47 (collecting cases addressing political

speech); Snyder v. Phelps, 562 U.S. 443, 451–52 (2011) (collecting cases addressing

speech on matters of public concern); State v. Taylor, 379 N.C. 589, 598–99, 866 S.E.2d

740, 749 (2021) (collecting cases).

Section 163-274(a)(9) regulates political speech -- false defamatory political

speech made with actual malice, but political speech nonetheless. The statute has the

potential to chill protected speech – political speech that is not false, does not defame a

candidate, or that is not made maliciously. In light of the need to provide “breathing

space” for protected speech on matters of public concern, Brown v. Hartlage, 456 U.S.

45, 60–61 (1982), a significant state interest and narrow tailoring appropriate to that

interest are required. See McIntyre, 514 U.S. at 347 (noting the “exacting scrutiny”

directed to laws that burden core political speech); Meyer v. Grant, 486 U.S. 414, 420

(1988) (same); Citizens United v. FEC, 558 U.S. 310, 340 (2010) (applying strict scrutiny

to a law burdening political speech).

But the fact that the statute meets the requirements in Garrison is not irrelevant to

the analysis, nor is the fact that the regulated speech is false and defamatory. Indeed, all

nine justices in Alvarez, across the plurality, concurring, and dissenting opinions, agreed

that speech’s falsity is relevant to the First Amendment analysis. 567 U.S. at 721–22,

734–37 (Breyer, J., concurring), 746–49 (Alito, J., dissenting).4

Alvarez involved a criminal prosecution for a false statement that was not

defamatory; it was a prosecution under the Stolen Valor Act for a false statement that the

4 The justices disagreed, among other things, about the appropriate degree of protection

applicable to false statements. Id. at 724, 730–31 (Breyer, J., concurring), 739 (Alito, J.,

dissenting).

speaker had received the Congressional Medal of Honor. 547 U.S. at 713. A plurality of

four justices applied “exacting scrutiny” to the law at issue but recognized a number of

permissible content-based restrictions, including those on defamation, id. at 717, and on

fraudulent speech consisting of knowing or reckless falsehoods. Id. at 719. The two

concurring justices applied intermediate scrutiny based on the context of the false

statement at issue. Id. at 731–32 (Breyer, J., concurring). And the three dissenting

justices said that “false statements of fact merit no First Amendment protection in their

own right” absent a “valid purpose” or need to provide breathing room for protected

speech. Id. at 748–51 (Alito, J., dissenting).

Here, as noted supra, North Carolina is criminalizing only a subset of criminal

libel. This is a category of speech for which content-based restrictions are permissible,

see id. at 717, assuming appropriate safeguards are in place. See Garrison, 379 U.S. at

67, 74–75. Under Garrison, the state could make all false defamatory statements made

with actual malice a crime. Id. at 74–75. It is thus difficult to see how the state’s

decision to narrow the scope of a criminal libel statute to apply to a type of speech that

causes additional societal harms is unconstitutional, assuming the statute protects against

those harms and does not overreach.

The weight of the state’s interests here cannot be questioned. First, its historical

interest in protecting citizens from defamation, see Alvarez, 567 U.S. at 717, does not

disappear because the citizen is a candidate for political office. States have an additional

compelling interest in preventing fraud and libel in elections, which “may have serious

adverse consequences for the public at large,” McIntyre, 514 U.S. at 349, and in

“preserving the integrity of [their] election process.” Eu, 489 U.S. at 231. As the

Supreme Court presciently noted in 1964,

At the time the First Amendment was adopted, as today, there

were those unscrupulous enough and skillful enough to use the

deliberate or reckless falsehood as an effective political tool to

unseat the public servant or even topple an administration.

That speech is used as a tool for political ends does not

automatically bring it under the protective mantle of the

Constitution. For the use of the known lie as a tool is at once

at odds with the premises of democratic government and with

the orderly manner in which economic, social, or political

change is to be effected.

Garrison, 379 U.S. at 75 (cleaned up). And, as the plurality pointed out in Alvarez, there

is no constitutional issue with statutes prohibiting false statements that “protect the

integrity of Government processes, quite apart from merely restricting false speech.” 567

U.S. at 721; see also id. at 717 (noting that fraud is one of the “historic and traditional

categories” of false statements subject to appropriate content-based restrictions). An

election is a government process of the most fundamental kind.

Section 163-274(a)(9) is narrowly tailored to meet these interests.

 The law applies only to false defamatory reports made with actual malice;

since New York Times, this high standard has been repeatedly recognized as

sufficient to protect the First Amendment rights of those engaged in speech

about public figures.5 See Garrison, 379 U.S. at 74–75; Herbert v. Lando, 441

U.S. 153, 169 (1979) (collecting cases); Alvarez, 567 U.S. at 719.

5 In civil defamation suits involving false defamatory speech in a private context, the

heightened actual malice standard is not required. See Dun & Bradstreet, Inc. v. Greenmoss

Builders, Inc., 472 U.S. 749, 757–61 (1985).

 To meet the goal of protecting government processes from fraud, the law

includes a subjective intent requirement like those applied to regulate or

prohibit fraudulent statements in other contexts. See generally Illinois ex rel.

Madigan v. Telemarketing Assoc., Inc., 538 U.S. 600, 620 (2003) (recognizing

a complainant in an Illinois fraud action must show that the defendant made a

knowingly false statement of material fact “with the intent to mislead the

listener, and succeeded in doing so”); State v. Taylor, 379 N.C. 589, 607 n.8,

866 S.E.2d 740, 754 (2021) (noting that “[a]lthough there is not a consensus,

many scholars agree that the First Amendment generally requires at least some

consideration of a defendant’s intent or state of mind when examining the

permissible scope of civil or criminal liability for speech acts”).

 To meet the goal of protecting the integrity of elections, the statute applies only

to fraudulent defamatory statements with the potential to undermine an

election: derogatory reports about a candidate intended to affect the

candidate’s electoral chances.

 The requirement of a derogatory report intended to affect a candidate’s

electoral chances imposes an implicit timing element: it must be speech

around the time of an election. The prohibition is thus limited to false

defamatory and malicious statements made during a time when false and

malicious defamatory statements has the potential to gather momentum with

little time for the often slower-to-surface factual counterspeech to be effective.

See Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring)

(recognizing counterspeech is effective only “if there be time . . . through

discussion [to counteract] the falsehood and fallacies”); Alvarez, 567 U.S. at

727–28 (citing Whitney concurrence with approval).

 The parties implicitly acknowledge that the statute targets only false statements

about verifiable facts in elections. It does not restrict pure opinion or negative

commentary. See Milkovich v. Lorian J. Co., 497 U.S. 1, 18–22 (1990)

(holding for a statement to be actionable as defamatory, it must expressly or

impliedly assert facts that are objectively verifiable); see generally Snyder, 562

U.S. at 448, 452–53 (discussing First Amendment protections for opinions and

negative commentary on matters of public concern).

 The law is not directed to a particular subject, unlike the statute at issue in

Alvarez, 567 U.S. at 723 (noting the dangers of “compil[ing] a list of subjects

about which false statements are punishable”). It applies only to false

defamatory statements about candidates.

Because the speech that § 163-274(a)(9) prohibits—false defamatory speech about

candidates intended to affect elections—must be made with actual malice and must be

factual, the law provides appropriate “breathing space” for protected speech. See Brown,

456 U.S. at 60–61. The law does not trigger “absolute accountability for factual

misstatements in the course of political [campaigns].” Id. at 61. Indeed, not even all

falsehoods stated with actual malice fall within the statute’s reach; it provides two

additional limitations on its application: the maliciously false statement must be one,

derogatory, i.e., defamatory, and two, made with the intent to “affect the chances” of an

electoral candidate. See § 163-274(a)(9). The statute is narrowly tailored to promote

compelling state interests in protecting candidates for office from false defamatory

statements, protecting governmental processes from fraud, and protecting elections from

being undermined by “those unscrupulous enough and skillful enough to use the

deliberate or reckless falsehood as an effective political tool.” Garrison, 379 U.S. at 75.

The plaintiffs cite several recent cases decided in the wake of Alvarez and holding

that state political false statement laws violated the First Amendment; they contend the

cases support a finding that § 163-274(a)(9) is facially unconstitutional. See Susan B.

Anthony List, 814 F.3d at 476; 281 Care Comm. II, 766 F.3d at 785; Rickert, 168 P.3d at

827; see also Lucas, 34 N.E.3d at 1245 (holding law violated cognate provision in the

Massachusetts Constitution). Those laws each incorporated an actual malice requirement

and the Ohio, Minnesota, and Massachusetts laws had similar provisions limiting

application to speech that was intended to influence an election. See Susan B. Anthony

List, 814 F.3d at 469–70 (Ohio law); 281 Care Comm. II, 766 F.3d at 778 (Minnesota

law); Lucas, 34 N.E.3d at 1244 n.1 (Massachusetts law); Rickert, 168 P.3d at 828 (pre-

Alvarez case evaluating Washington law).

But § 163-274(a)(9) has a further limitation; it includes a requirement that the

speech be defamatory. As each of the courts recognized when invalidating the laws at

issue, those laws did not have this limitation and criminalized all false statements

intended to influence elections. See Susan B. Anthony List, 814 F.3d at 473; Lucas, 34

N.E.3d at 1249–50; Rickert, 168 P.3d at 828–29; 281 Care Comm. v. Arneson, 638 F.3d

621, 634–36 (8th Cir. 2011) (281 Care Comm. I) (distinguishing between knowingly

false campaign speech and defamatory speech and directing the application of heightened

scrutiny on remand); 281 Care Comm. II, 766 F.3d at 785 (applying strict scrutiny and

invalidating the Minnesota law). Section 163-274(a)(9) thus applies more narrowly than

each of the laws held to be unconstitutional. This additional requirement moves the

restricted speech back into a “historic and traditional category of expression” long

recognized as subject to appropriate content-based restrictions. Alvarez, 567 U.S. at 717–

18; see also Garrison, 379 U.S. at 74–75.

The plaintiffs also contend that the five tailoring concerns the Sixth Circuit

identified in Susan B. Anthony List when reviewing Ohio’s political false statement law

apply here. 814 F.3d at 474. But those tailoring factors are not determinative for several

reasons. First, the list of factors reads more like a means to bureaucratically undermine

the holdings in Garrison, 379 U.S. at 74–75, and New York Times, 376 U.S. at 282–83,

by making it impossible for a state to constitutionally regulate false and malicious lies

about a candidate made during a campaign. Second, the Sixth Circuit would require at

least two means of tailoring that appear mutually exclusive.6 Third, the Sixth Circuit’s

approach disregards the Supreme Court’s cautions that “a facial challenge must fail

where the statute has a plainly legitimate sweep” and that courts “must be careful not to

go beyond the statute’s facial requirements and speculate about ‘hypothetical’ or

‘imaginary’ cases.” Wash. State Grange, 552 U.S. at 449–50.

6 The Sixth Circuit would require a criminal libel statute to require quick action during the

lead-up to an election, see Susan B. Anthony List, 814 F.3d at 474, while at the same time

imposing a detailed and complicated set of multiple safeguards and procedural undertakings

before such quick action could be taken. See id. at 474–75.

Putting aside those problems, the factors identified in Susan B. Anthony List do not

apply with equal force to § 163-274(a)(9). The tailoring issues there, see Susan B.

Anthony List, 814 F.3d at 473–76, stemmed in part from the Ohio law’s broader sweep,

which included all false non-material statements intended to influence an election.7 As

discussed supra, § 163-274(a)(9) prohibits only false defamatory speech about

candidates, not false speech about a candidate generally. Thus, § 163-274(a)(9) is, on its

face, more narrowly tailored.

In evaluating whether the statute provides sufficient breathing room, it is

appropriate to account for the possibility that government officials might misuse § 163-

274(a)(9) to prosecute political opponents, which could chill protected speech. But this

risk is not enough to facially invalidate the statute. There are institutional protections

from such prosecutorial abuses. The difficulties in succeeding on meritless charges,

electoral consequences to prosecutors who bring them, and civil suits for malicious

prosecution serve as guardrails against government officials pursuing opportunistic and

meritless prosecutions against political opponents.

There is another protection for protected speech: the courts are available to curb

overzealous application of the statute to particular speech if that application would violate

the First Amendment. The North Carolina Supreme Court has shown its willingness to

7 The Ohio law made it a crime to “[p]ost, publish, circulate, distribute, or otherwise

disseminate a false statement concerning a candidate, either knowing the same to be false or with

reckless disregard of whether it was false or not, if the statement is designed to promote the

election, nomination, or defeat of the candidate.” Ohio Rev. Code § 3517.21(B)(10).

do so, both by finding statutes to violate the First Amendment as applied and to require

jury instructions that bring application of a regulation of speech within the bounds of the

Constitution.’ See, e.g., Taylor, 379 N.C. at 608-12.

VII. Conclusion

False malicious defamatory speech can be “used as an effective political tool to

unseat the public servant or even topple an administration” and can lead to volatile,

unstable, and even violent results “at odds with the premises of democratic government

and with the orderly manner in which economic, social, or political change is to be

effected.” Garrison,379 U.S. at 75. Because § 163-274(a)(9) is a criminal libel law that

falls within a category of speech long subject to appropriate content-based restrictions;

satisfies the requirements set forth in Garrison; and is appropriately narrowed to address

legitimate and substantial governmental and public interests and to provide breathing

room for protected speech, the plaintiffs’ constitutional claim that § 163-274(a)(9)

facially violates the First Amendment is not likely to succeed on the merits.

It is ORDERED that the plaintiffs’ motion fora preliminary injunction, Doc. 5, is

DENIED. The temporary restraining order, Doc. 16,1s VACATED.

This the 9th day of August, 2022.

UNITED STATES DISTRICT JUDGE □

8 The Court expresses no opinion as to whether application of § 163-274(a)(9) to the

arguably metaphorical speech here would be unconstitutional.

17