The law provides:
To publish or circulate reports defamatory to any person
With reference to any candidate in any primary or election, knowing such
The report is false or recklessly negligent of its truth or falsity, when e.g
Reports are calculated or intended to influence the prospects of such candidates
Nomination or election.
Today’s Grimmett v. Freeman (4th Cir.), written by Judge Toby Heitens and joined by Judges Albert Diaz and Alison Rushing, concluded that the statute was unconstitutional because it “makes at least some statements of fact appear to be criminal”:
“[D]defamatory report” is prohibited when the speaker “knows such report to be false or recklessly disregards its truth or falsity.” We can assume a speaker “could not know ․[]”A statement “must be false” unless the statement is false. But in its general terms, the statute criminalizes truthful defamatory statements unless the speaker “acts with reckless negligence.” [a statement’s] true or false.”
{The lack of an express limitation on false statements distinguishes this statute from criminal defamation statutes upheld by other circuits. See Frese v. Formella (1st Cir. 2022) (“Upholding statutes intentionally prohibiting communications[ing]””any facts” a speaker “knows to be false And knows will tend to expose any other living person to public hatred…” (emphasis added)); Phelps v. Hamilton (10th Cir. 1995) (upholding the definition of[c]Rimal defamation [as] Maliciously communicating… wrong information Tendency to expose another living person to public hatred…” (emphasis added)).
(The court also noted that “defamatory” does not implicitly include the requirement of falsity, and indeed a related North Carolina provision interpreted “defamatory” to cover true but defamatory statements.)
And the Court concluded that, even if the statute were limited to defamatory falsehoods, it would be unconstitutionally content-discriminatory. RAV v. City of St. Paul (1992):
The Act … limits its prohibition to statements about a specific subject (“candidate at any primary or election”) of a specific nature or made with a particular intent (“intention to influence the nomination or the prospects of such candidate for nomination or election”). )….
Under the law, speakers can lie with impunity about businessmen, celebrities, completely private citizens, and even government officials as long as the victim is not currently a “candidate in any primary or election.” That is textbook content discrimination.
Restrictions in the Act on Statements “calculated or intended to affect the prospects of such candidate[s] for nomination or election,” only complicates the issue. Taken literally, this language means that it is OK to spread a viral lie in the hope of ending a candidate’s marriage but it is a crime to do the same if it is intended to destroy (in whole or in part) ) political campaigns of individuals…
[T]He said the law had no clear connection to the reputation-based reasons that allowed states to ban defamation in the first place. And that, in turn, is why the district attorney’s efforts to resemble the law in 18 USC § 871, the presidential threat statute, fall flat. as RAV As explained, a statute prohibiting threats against the President is constitutional only because “threats of violence occur outside the First Amendment (protecting individuals from fear of violence, from disturbance causing fear, and from the possibility of the threat of violence occurring)” when the special force is exercised against the person of the President. will be.” A similar argument explains why a state may prohibit cross burning (and only cross burning) intended to intimidate: “Because burning a cross is a particularly deadly form of intimidation.” Virginia vs. Black
Here, by contrast, the District Attorney cited no authority that the grounds under the defamation statute have “special force” when applied to speech about political candidates intended to influence an election. In fact, First Amendment doctrine suggests the opposite. See, e.g., Gertz v. Robert Welch, Inc. (1974) (“Government officials and public figures . . . have a more realistic opportunity to defend against false statements than private persons ordinarily enjoy. Private persons are therefore more vulnerable to injury, and the State’s interest in their protection is correspondingly greater.”) Furthermore, Dist. The justification that the Attorney Act offers to support content discrimination (preventing campaign fraud and protecting election integrity) is of a different type, if not degree, than the reputation-based justification underlying defamation law. Finally, the law’s careful limitation to only a subset of defamatory statements to which elected officials may be particularly hostile—those harmful to their own political prospects—raises the possibility of “government suppression of ideas.”
as RAV, the statute’s limitation to address only certain matters renders it facially unconstitutional. “The decisive question in this case … is whether the content is reasonably necessary to achieve discrimination [North Carolina’s] Compelling interest[]”In preventing false defamatory speech made with actual malice. Here, “it is clearly not” because “[a]n ordinance not limited to “speech about current political candidates” would have precisely the same beneficial effect.” “Indeed the only interest uniquely served by the content limitation is to demonstrate. [State’s] Special hostility to “defamatory speech against political candidates”. “That’s what the First Amendment prohibits.”
{If the law is intended to prevent electoral fraud and protect the integrity of elections, it draws a curious line. The law does not prohibit inflating a candidate’s credentials or spreading self-promoting falsehoods, nor does it touch on falsehoods that undermine the perception of electoral integrity without reference to a specific candidate. As the Supreme Court has recognized, such “inclusion may raise doubts about whether the government is actually pursuing the interests it purports to have, rather than opposing a particular speaker or point of view.”}
For more on the particular case that led to this decision, involving the threatened prosecution of NC Attorney General Josh Stein, see this article by Josh Gerstein (POLITICO).