JULIETTE GRIMMETT; RALSTON LAPP GUINN MEDIA GROUP; JOSH STEIN FOR ATTORNEY GENERAL CAMPAIGN; JOSH STEIN; SETH DEARMIN; ERIC STERN v. N. LORRIN FREEMAN; DAMON CIRCOSTA; STELLA ANDERSON; JEFF CARMON, III; STACY EGGERS, IV; TOMMY TUCKER
No. 22-1844
United States Court of Appeals for the Fourth Circuit
February 8, 2023
PUBLISHED
Plaintiffs - Appellants,
v.
N. LORRIN FREEMAN, in her official capacity as District Attorney for the 10th Prosecutorial District of the State of North Carolina,
Defendant - Appellee,
and
DAMON CIRCOSTA, in his official capacity as Chair of the North Carolina State Board of Elections; STELLA ANDERSON, in her official capacity as Secretary of the North Carolina State Board of Elections; JEFF CARMON, III, in his official capacity as Member of the North Carolina State Board of Elections; STACY EGGERS, IV, in his official capacity as Member of the North Carolina State Board of Elections; TOMMY TUCKER, in his official capacity as Member of the North Carolina State Board of Elections,
Defendants.
DUKE FIRST AMENDMENT CLINIC,
Amicus Supporting Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Catherine C. Eagles, District Judge. (1:22-cv-00568-CCE-JLW)
Argued: December 6, 2022
Decided: February 8, 2023
Before DIAZ, RUSHING, and HEYTENS, Circuit Judges.
Vacated and remanded by published opinion. Judge Heytens wrote the opinion, in which Judge Diaz and Judge Rushing joined. Judge Rushing wrote a concurring opinion.
ARGUED: Michael R. Dreeben, O’MELVENY & MYERS LLP, Washington, D.C., for Appellants. Joseph Edward Zeszotarski, Jr., GAMMON HOWARD & ZESZOTARSKI, PLLC, Raleigh, North Carolina, for Appellee. ON BRIEF: Pressly M. Millen, Raymond M. Bennett, Samuel B. Hartzell, WOMBLE BOND DICKINSON (US) LLP, Raleigh, North Carolina; Meaghan VerGow, Jenya Godina, O’MELVENY & MYERS LLP, Washington, D.C., for Appellants. Sarah Ludington, C. Amanda Martin, DUKE FIRST AMENDMENT CLINIC, Durham, North Carolina; Christopher A. Brook, PATTERSON HARKAVY LLP, Chapel Hill,
TOBY HEYTENS, Circuit Judge:
A 90-year-old North Carolina law makes it a crime to publish a “derogatory report[]” about candidates for public office where the speaker “know[s] such report to be false or” acts “in reckless disregard of its truth or falsity.”
In 2020, Josh Stein and Jim O‘Neill were vying to serve as North Carolina‘s attorney general. As part of that contest, plaintiff Josh Stein for Attorney General Campaign hired plaintiff Ralston Lapp Guinn Media Group to produce an ad criticizing O‘Neill‘s handling of untested rape kits. In that ad, plaintiff Juliette Grimmett says:
As 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.
JA 19. The ad was broadcast throughout North Carolina.
In September 2020, while the campaign was still underway, a committee supporting O‘Neill filed a complaint with the North Carolina State Board of Elections asserting the ad violated Section 163-274(a)(9) of the North Carolina General Statutes. That provision makes it a Class 2 misdemeanor—in other words, a crime:
For 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.
As required by North Carolina law, the Board of Elections investigated the claim. Roughly eight months later, the Board issued a final report recommending no charges be filed. Besides expressing doubt about whether an adequate factual predicate existed, the Board was “concerned that if a violation is found, this might be an unconstitutional application of the statute.” JA 447.
Dissatisfied with the Board‘s recommendation, a local district attorney tasked the State Bureau of Investigation to continue looking into the matter. The district attorney requested the investigation about a month after the Board‘s final report, and it remained unresolved for more than a year.
Almost a year and ten months after the initial complaint, a prosecutor told the Josh Stein for Attorney General Campaign the district attorney planned to present charges to a state grand jury. The next day, plaintiffs filed suit in federal district court, seeking a declaratory judgment that the Act is unconstitutional and to enjoin its enforcement against them. Plaintiffs also requested a temporary restraining order and a preliminary injunction.1
The district court granted a temporary restraining order, concluding “plaintiffs have shown a likelihood of prevailing on the merits of their claim that
II.
We conclude the Act is likely unconstitutional for two reasons. First, the Act appears to criminalize at least some truthful statements—a result the First Amendment forbids. Second, even if the Act reaches only false statements, it makes impermissible content-based distinctions in selecting which speech to forbid.
A.
The district attorney‘s defense of the Act‘s constitutionality rests mainly on Garrison v. Louisiana, 379 U.S. 64 (1964). It goes like this: Under Garrison, criminal libel statutes are constitutional so long as they apply only to false speech and require proof of actual malice. This Act applies only to false speech made with actual malice. So, the Act is constitutional.
Although plaintiffs challenge both steps of this argument, we need only reach the second one. Whether or not plaintiffs are correct about all of Garrison‘s implications, we conclude the Act likely criminalizes at least some truthful speech—a step the Constitution forbids. See Garrison, 379 U.S. at 74 (“Truth may not be the subject of either civil or criminal sanctions where discussion of public affairs is concerned.“).
The statutory text frames the prohibited conduct disjunctively: “[D]erogatory reports” are prohibited when the speaker makes them “knowing such report to be false or in reckless disregard of its truth or falsity.”
falsity.”
Resisting this conclusion, the district attorney asserts the Act‘s use of the term “derogatory” excludes truthful statements. That argument has multiple problems.
For one thing, the district attorney does not identify—nor have we located—any source suggesting “derogatory” refers exclusively to factually false statements. To the contrary, dictionaries from around the time of the Act‘s 1931 passage define “derogatory” as “lessening in good repute; detracting from estimation; disparaging”3
To be sure, state—not federal—courts have the last word about what state law means. See generally Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). But the district attorney provides no evidence North Carolina‘s highest court would construe this statute to mean something other than what it says. Indeed, in a particularly damning blow to the district attorney‘s position, the Supreme Court of North Carolina has said that an immediately adjacent statutory provision—which, like the Act, uses the term “derogatory”
and was enacted as part of the same 1931 statute—“clearly” encompasses “truthful statements.” State v. Petersilie, 432 S.E.2d 832, 842 (N.C. 1993) (discussing what is now
The district attorney gamely insists North Carolina‘s highest court would deploy the absurd results or constitutional avoidance canons to save the Act, which—the district attorney emphasizes—contains other language absent from the one at issue in Petersilie. We have no way of definitively resolving the district attorney‘s prediction because “unlike . . . the other States in the circuit,” North Carolina “does not provide a mechanism by which we could certify the question to North Carolina‘s Supreme Court.” In re McCormick, 669 F.3d 177, 182 n.* (4th Cir. 2012).
Even so, we think it unlikely the North Carolina Supreme Court would read the Act as the district attorney suggests. In North Carolina, “[s]tatutory interpretation properly begins with an examination of the plain words of the statute,” and “[c]anons of statutory interpretation“—including “constitutional avoidance“—are “only employed when there are two or more reasonable meanings of the statutory language at issue.” JVC Enterprises v. City of Concord, 855 S.E.2d 158, 161–62 (N.C. 2021) (quotation marks omitted). Here, the “plain words of the statute” reach truthful statements. Id. at 161; see Virginia v. American Booksellers Ass‘n, Inc., 484 U.S. 383, 397 (1988) (stating a federal court may
not “rewrite a state law to conform it to constitutional requirements“).6
Shifting gears, the district attorney asserts that even if the Act reaches some truthful speech, it remains constitutional
B.
The Act is likely unconstitutional for a second reason as well. Even assuming the Act reaches only false statements and that Garrison‘s seeming approval of certain criminal libel statutes remains good law, we would still conclude this Act fails constitutional scrutiny because it draws impermissible content-based distinctions in identifying which speech to criminalize.
The Act does not reach all “derogatory reports” made with “reckless disregard of [their] truth or falsity.”
In R.A.V., the Supreme Court emphasized the distinction between (permissibly) regulating speech “because of [its] constitutionally proscribable content” and (impermissibly) using a category of unprotected speech as a “vehicle[] for content discrimination unrelated to [its] distinctively proscribable content.” 505 U.S. at 383–84. The Court gave a telling example: “[T]he government may proscribe libel; but it may not make the further content discrimination of proscribing only libel critical of the government.” Id. at 384; see id. (noting a city could not enact “an ordinance prohibiting only those legally obscene works that contain criticism of the city government“).
True, this Act regulates statements critical of political candidates rather than of the government itself. But the Act still falls within R.A.V.‘s holding that a State may not
“prohibit[] otherwise permitted speech solely on the basis of the subjects the speech addresses.” 505 U.S. at 381. Under this statute, speakers may lie with impunity about businesspeople, celebrities, purely private citizens, or even government officials so long as the victim is not currently a “candidate in any primary or election.”
The Act‘s limitation to statements “calculated or intended to affect the chances of such candidate[s] for nomination or election,”
This is not to say, of course, that laws touching on speech may not have a scienter requirement. But the lines this Act draws have no obvious relation to the reputation-based reasons for allowing States to prohibit libel in the first place.7 And that, in turn, is why the district attorney‘s attempt to analogize the Act to
the disruption that fear engenders, and from the possibility that the threatened violence will occur) have special force when applied to the person of the President.” 505 U.S. at 388. The same sort of reasoning explains why a State may outlaw cross burning (and only cross burning) done with the intent to intimidate: “because burning a cross is a particularly virulent form of intimidation.” Virginia v. Black, 538 U.S. 343, 363 (2003).
Here, in contrast, the district attorney cites no authority suggesting the reasons undergirding libel laws have “special force” when applied to speech about political candidates intended to influence elections. R.A.V., 505 U.S. at 388. In fact, First Amendment doctrine suggests the opposite. See, e.g., Gertz v. Robert Welch, Inc., 418 U.S. 323, 344 (1974) (“Public officials and public figures . . . have a more realistic opportunity to counteract false statements than private individuals normally enjoy. Private individuals are therefore more vulnerable to injury, and the state interest in protecting them is correspondingly greater.” (footnote omitted)).8 In addition, the justification the district attorney offers to support the Act‘s content discrimination (preventing campaign fraud and protecting election integrity) is of a different kind, not degree, than the reputation-based
justifications underlying libel laws. See Rosenblatt v. Baer, 383 U.S. 75, 86 (1966); Gertz, 418 U.S. at 343. Finally, the Act‘s careful limitation to only a subset of derogatory statements to which elected officials may be particularly hostile—those harmful to their own political prospects—raises the “possibility that official
As in R.A.V., the Act‘s limitation to speech addressing only certain topics renders it facially unconstitutional. “The dispositive question in this case . . . is whether content discrimination is reasonably necessary to achieve [North Carolina‘s] compelling interest[]” in preventing false defamatory speech made with actual malice. R.A.V., 505 U.S. at 395–96. Here, “it plainly is not” because “[a]n ordinance not limited to” speech about current political candidates “would have precisely the same beneficial effect.” Id. at 396. “In fact the only interest distinctively served by the content limitation is that of displaying the [State‘s] special hostility towards” defamatory speech against political candidates. Id. “That is precisely what the First Amendment forbids.” Id.
* * *
The district court denied plaintiffs’ motion for a preliminary injunction based solely on its conclusion that plaintiffs were unlikely to succeed on the merits of their First Amendment claim. Although the parties disagree about whether plaintiffs can satisfy the remaining three Winter factors, “we are a court of review, not of first view.” Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005). We thus vacate the district court‘s order and remand for further proceedings consistent with this opinion.
SO ORDERED
RUSHING, Circuit Judge, concurring:
I agree that the plaintiffs are likely to succeed on the merits of their First Amendment claim. I therefore join the Court‘s opinion, which does not address the other preliminary injunction factors—likely irreparable harm, the balance of the equities, and the public interest—instead leaving them for the district court to resolve on remand. Compare Grimmett v. Freeman, No. 22-1844, 2022 WL 3696689, at *2 (4th Cir. Aug. 25, 2022) (per curiam), with id. at *2–3 (Rushing, J., dissenting).