The First Amendment Clinic at Duke University’s law school is joining Attorney General Josh Stein’s push to invalidate a century-old state law against false campaign advertising.
The organization filed an amicus brief this week in Stein’s federal lawsuit that seeks to have the law deemed unconstitutional. Stein filed the suit as Wake County District Attorney Lorrin Freeman appeared poised to charge him and his campaign staff under it over a TV ad from Stein’s 2020 campaign.
The amicus brief, first reported by the Carolina Journal, includes a detailed history lesson on libel issues in English common law and early colonial America, and it outlines the history of the false campaign advertising law.
It was passed in 1931 in direct response to the 1928 campaign activities of a group called the “Anti-Smith Democratic Committee,” which the brief says “circulated anti-Catholic literature about (New York governor and presidential candidate Alfred) Smith throughout the state and hosted speakers, including the Reverend John Roach Straton, who described the people marching with Governor Smith as the ‘worse forces of hell in the land’ including ‘the gunmen, the gangsters and the gadabouts; … the gamblers, the horse races and the touts.’”
The group spent more than $30,000 – big money at the time – and refused to file reports detailing its expenses.
The First Amendment Clinic attorneys wrote that “the Democratic Party – bitter to have lost to F.M. Simmons and his rogue machine within the party – resurrected the 1913 law to ensure that they would have a libel statute to weaponize against their political enemies in the future.” The law was used in prosecution only once before the Stein case, and that was in 1947.
“Given that the statute was motivated by political rivalries, and there is only one precedent for criminally prosecuting the criticism of a candidate for office in North Carolina, any criminal action against Attorney General Stein must meet with serious skepticism,” the brief says.
Stein has effectively won already because the statute of limitations for the 2020 ad will expire before the case is heard in December. But the case could still decide the long-term fate of the law.