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Josh Stein: 2020 campaign investigation is unconstitutional

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North Carolina Attorney General Josh Stein holds a press conference outside the Durham County Courthouse on June 28, 2021.

North Carolina Attorney General Josh Stein holds a press conference outside the Durham County Courthouse on June 28, 2021.


Attorney General Josh Stein’s 2020 campaign is facing a criminal investigation — but the law it’s based on is outdated and unconstitutional, he argued Thursday in court filings as well as in an interview with The News & Observer.

Stein said the law in question, which governs the content of political ads, is nearly a century old and yet had never been prosecuted — until his 2020 opponent for the attorney general’s office, Forsyth County District Attorney Jim O’Neill, cited it to request the investigation.

The criminal investigation has not been publicly reported before; The N&O had reported that O’Neill had requested an investigation. Stein said he was making it public Thursday and filing a lawsuit because he’s confident that the investigation is based on an unconstitutional law but that O’Neill “refuses to give it up.”

The lawsuit is seeking a ruling, Stein said, “that this outdated, antiquated, unconstitutional statute is in fact unconstitutional.”

The law in question makes it a misdemeanor “to publish or cause to be circulated derogatory reports” about a politician if it’s false or might be false.

Stein said that he stands by the truth of his ad, but that regardless, First Amendment protections for political speech are so strong that the law is clearly unconstitutional in his view. State and federal courts in multiple other states have ruled similar laws unconstitutional, his lawsuit argues.

“The fact that the specter of the statute has forced (Stein’s campaign and those involved in the ad) to engage in with an invasive and expensive investigation for nearly two years shows that the statute serves primarily to chill protected political speech,” the lawsuit says.

What’s the investigation about?

It all goes back to a war of words between Democrat Stein and Republican O’Neill in their tightly contested 2020 race — which Stein won with 50.1% of the vote.

Both ran ads attacking the other over evidence collected from sexual assault allegations, often called “rape kits,” that had never been tested.

There were roughly 15,000 untested rape kits statewide. O’Neill said it was Stein’s fault, but Stein pointed to local law enforcement — and said Forsyth County, where O’Neill is the top prosecutor, was one of the worst counties in North Carolina for untested kits, with roughly 10% of the statewide total.

O’Neill claimed that one of Stein’s ads went too far in assigning blame to him, and requested an investigation. Such investigations are typically not public, but Stein confirmed Thursday that the N.C. State Board of Elections conducted an investigation of its own, then sent its information to Wake County District Attorney Lorrin Freeman, who started an investigation of her own. Freeman is a Democrat, as is the majority of the elections board.

For more North Carolina government and politics news, listen to the Under the Dome politics podcast from The News & Observer and the NC Insider. You can find it at https://campsite.bio/underthedome or wherever you get your podcasts.

Will Doran reports on North Carolina politics, particularly the state legislature. In 2016 he started PolitiFact NC, and before that he reported on local issues in several cities and towns. Contact him at wdoran@newsobserver.com or (919) 836-2858.

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