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North Carolina ban on campaign lies ‘likely unconstitutional’


North Carolina’s ban on campaign falsehoods almost certainly violates the U.S. Constitution’s freedom of speech protections, a federal appeals court ruled Wednesday.

A prosecutor has sought to charge North Carolina Attorney General Democrat Josh Stein with lying about his opponent’s 2020 record when testing evidence from alleged rape cases. The Republican nominee had argued that, as a prosecutor, he was not responsible for the rape kit backlog — the police were.

Stein was charged with violating a 1931 law prohibiting “derogatory” reports about candidates for state office that the publisher knew were either false or with “reckless disregard” for accuracy.

The NC attorney general cannot yet be charged with crime over campaign advertising

The State Board of Elections felt there was too much “ambiguity” surrounding both the facts of the campaign ad in question and the constitutionality of the law to recommend charges. But the Wake County District Attorney moved forward with an investigation. The case would go to a grand jury before Stein asked the federal courts to intervene.

The law “is probably unconstitutional for two reasons,” the U.S. Court of Appeals for the 4th Circuit ruled, in a unanimous opinion written by President Biden appointee Toby J. Heytens: It “appears to criminalize at least some truthful statements ”, if they are derogatory and made recklessly, and “makes intolerable content-based discrimination” by targeting only campaign-related speech.

The case is still in its early stages, so the court ruled only on the likelihood that Stein would succeed in proving the law violates the First Amendment. The ruling overturns a district court decision that denied Stein a preliminary injunction.

But the court described the law as “plainly unconstitutional” and rejected arguments that the law served to prevent voter fraud and bolster confidence in the system.

“The law does not prohibit inflating a candidate’s credentials or promoting self-aggrandizing falsehoods, nor does it touch on knowing falsehoods that undermine perceptions of electoral integrity without reference to a particular candidate,” Heytens wrote. Instead, he wrote, the law could undermine democracy by “creating chilling effects on truthful statements made during political campaigns.”

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