From yesterday's decision in Grimmett v. Freeman, entered by Judge Toby Heytens, joined by Judge Albert Diaz:
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 (2009) (quotation marks omitted)…. 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." 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.
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 (1964) (emphasis added). Plaintiffs have questioned whether that holding remains viable under modem 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.'" 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." {At this point, we are not persuaded by the district court's apparent conclusion that "derogatory" necessarily means false. The ordinary meaning of "derogatory" is "[l]essening in good repute; detracting from estimation; disparaging." Derogatory, The Practical Standard Dictionary of the English Language (1936); see also State v. Petersilie, 432 S.E.2d 832, 834, 842 (N.C. 1993) (holding that a statute criminalizing "derogatory charges against candidates" "clearly does" cover "even truthful statements"). Plenty of perfectly true statements might reflect badly on a person and lessen their good repute.}
My quick reaction at this point:
