Virginia Lawyers Weekly VA Lawyers Weekly
Where a North Carolina law punishing certain “derogatory reports” about candidates for public office likely criminalizes at least some truthful speech, and draws impermissible content-based distinctions in identifying which speech to criminalize, it is likely unconstitutional.
Background
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.” Plaintiffs assert this statute violates the First Amendment. The district court denied a preliminary injunction because it determined plaintiffs were unlikely to succeed on the merits.
Analysis
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.
Whether or not plaintiffs are correct about all of Garrison’s implications, this court concludes the act likely criminalizes at least some truthful speech — a step the Constitution forbids. 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.”
This court may assume a speaker cannot “know[]” a statement “to be false” unless the statement is false. But by its plain terms this statute also criminalizes truthful derogatory statements so long as the speaker acts “in reckless disregard of [a statement’s] truth or falsity.” That is precisely what Garrison holds is unconstitutional.
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 has this court 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” or “disparaging; detracting,” with modern definitions including “expressive of a low opinion,” “disparaging” or “detracting from the character or standing of something.” And in common usage, there is no reason a statement cannot be both derogatory and true.
And the district attorney provides no evidence North Carolina’s highest court would construe this statute to mean something other than what it says. Instead 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.”
The district attorney insists North Carolina’s highest court would deploy the absurd results or constitutional avoidance canons to save the act. But North Carolina “does not provide a mechanism by which we could certify the question to North Carolina’s Supreme Court.” And this court thinks it unlikely the North Carolina Supreme Court would read the act as the district attorney suggests.
Shifting gears, the district attorney asserts that even if the act reaches some truthful speech, it remains constitutional because any overbreadth is not substantial in relation to the act’s legitimate sweep. The court disagrees. The district attorney has offered no examples of this act’s “legitimate applications” — much less applications unrelated to speech — nor has she shown any such applications should mitigate this court’s concerns about the law’s chilling effects on truthful speech during political campaigns.
Even assuming the act reaches only false statements and that Garrison’s seeming approval of certain criminal libel statutes remains good law, moreover, the act fails constitutional scrutiny because it draws impermissible content-based distinctions in identifying which speech to criminalize. It limits its prohibition to statements about a certain subject (“any candidate in any primary or election”) of a particular nature or made with a particular intent (“calculated or intended to affect the chances of such candidate for nomination or election”). 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.
So ordered.
Concurring opinion
Rushing, J., 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.
Grimmett v. Freeman, Case No. 22-1844, Feb. 8, 2023. 4th Cir. (Heytens), from MDNC at Greensboro (Eagles). Michael R. Dreeben for Appellants. Joseph Edward Zeszotarski Jr. for Appellee. VLW 023-2-034. 15 pp.
