1:22-cv-00568-CCE-JLW) JULIETTE GRIMMETT v. N. Lorrin Freeman

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-1844
(1:22-cv-00568-CCE-JLW)
JULIETTE GRIMMETT; RALSTON LAPP GUINN MEDIA GROUP; JOSH
STEIN FOR ATTORNEY GENERAL CAMPAIGN,
Plaintiffs - Appellants,
v.
N. LORRIN FREEMAN, in her official capacity as District Attorney for the 10th
Prosecutorial District for the State of North Carolina,
Defendant - Appellee.
O R D E R
PER CURIAM:
In 2020, Josh Stein and Jim O’Neill were engaged in a heated campaign to serve as
attorney general of North Carolina. The Stein campaign ran an advertisement the O’Neill
campaign believes was false. Stein ultimately won the election.
Now, nearly two years later, the district attorney’s office in Wake County has
indicated that it plans imminently to seek an indictment against Josh Stein’s campaign (and
others involved in producing the advertisement) under a state criminal libel statute. The
potential targets of the investigation sought a preliminary injunction against the district

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attorney, which the district court denied. The Stein campaign and its affiliates appealed and
seek an injunction pending appeal.
We conclude plaintiffs have satisfied the demanding standard for obtaining an
injunction pending appeal. Most critically, plaintiffs have made a “strong showing that
[they are] likely to succeed on the merits” of their First Amendment challenge. Nken v.
Holder, 556 U.S. 418, 426 (2009) (quotation marks omitted).
At the outset, we note that neither the district court nor the district attorney have
suggested that abstention in favor of the state criminal process is appropriate in this case.
In the First Amendment context, the Supreme Court has recognized that a plaintiff who has
“alleged a credible threat of enforcement” may generally “bring a preenforcement
challenge” in federal court. Susan B. Anthony List v. Driehaus, 573 U.S. 149, 159 (2014).
Although federal courts must usually abstain from exercising their jurisdiction to issue
injunctive relief if a “state criminal prosecution[ ]” has already begun, Younger v. Harris,
401 U.S. 37, 53 (1971), abstention is not warranted when “proceedings of substance on the
merits have taken place in federal court” before any relevant state proceeding has occurred.
Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 238 (1984) (quotation marks omitted). And
here it appears undisputed that no grand jury proceedings had commenced before the
district court considered the merits of this case when it denied the motion for a preliminary
injunction.
We therefore turn to the merits of plaintiffs’ First Amendment challenge. The North
Carolina statute at issue criminalizes publishing “derogatory reports with reference to any
candidate in any primary or election, knowing such report to be false or in reckless

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disregard of its truth or falsity.” N.C. Gen. Stat. § 163-274(a)(9). Because this statute
regulates “core political speech,” First Amendment concerns are at their “zenith” and we
must subject the statute to particularly careful constitutional examination. Buckley v.
American Const. Law Found., Inc., 525 U.S. 182, 186–87 (1999) (quotation marks
omitted).
Like the district court, we acknowledge that a nearly 60-year-old decision of the
Supreme Court states that a “lie, knowingly and deliberately published about a public
official” may potentially be the subject of a criminal prosecution. Garrison v. Louisiana,
379 U.S. 64, 75 (1964) (emphasis added). Plaintiffs have questioned whether that holding
remains viable under modern First Amendment doctrine. But, even accepting Garrison as
good law, that same decision made clear that the First Amendment does not permit a State
to criminalize “true statements,” even those “made with ‘actual malice.’ ” Id. at 78. And it
appears the law challenged here does just that by criminalizing a “derogatory report” made
either “knowing such report to be false or in reckless disregard of its truth or falsity.”1
Plaintiffs also have demonstrated that irreparable harm is likely absent an
injunction. Infringing constitutional rights generally constitutes irreparable harm, see Ross
v. Meese, 818 F.2d 1132, 1135 (4th Cir. 1987), and plaintiffs have credibly alleged that
1 At this point, we are not persuaded by the district court’s apparent conclusion that
“derogatory” necessarily means false. See D. Ct. ECF 23 at 6 n.2. The ordinary meaning
of “derogatory” is “[l]essening in good repute; detracting from estimation; disparaging.”
Derogatory, The Practical Standard Dictionary of the English Language (1936); see also
State v. Petersilie, 432 S.E.2d 832, 834, 842 (N.C. 1993) (holding that a statute
criminalizing “derogatory charges against candidates” “clearly does” cover “even truthful
statements”). Plenty of perfectly true statements might reflect badly on a person and lessen
their good repute.

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their political speech will be chilled should a prosecution go forward. For instance, at least
one of the named plaintiffs in this case—the public relations firm behind the
advertisement—has indicated that a criminal prosecution would require it to “reconsider”
whether it would “continue to work with North Carolina campaigns and candidates,” D.
Ct. ECF 5-2 at 4.
On the other side of the ledger, the district attorney primarily contends that the two-
year limitations period is about to run, jeopardizing her power to prosecute should she
ultimately prevail in this appeal. It appears that any such injury is, at least to some extent,
self-inflicted, because the district attorney has not adequately explained why it was
necessary to wait so long to bring charges in a case where the alleged crime was broadcast
on television nearly two years ago. In any event, plaintiffs have represented to this Court
that they are willing to agree to a reasonable stipulation tolling the limitations period,
mitigating the impact of any such injury.2 And to the extent the State has an interest in
regulating false campaign speech (in this case or generally), the district attorney has not
explained why an ordinary civil defamation action is inadequate to the task.
An injunction pending appeal also serves the broader public interest. Candidates
currently running for office in North Carolina might well be chilled in their campaign
speech by the sudden reanimation of a criminal libel law that has been dormant for nearly
a century—harming the public’s interest in a robust campaign. After all, “it is our law and
2 To avoid future doubt: We accept that representation as truthful and rely on it in
issuing our order today.

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our tradition that more speech, not less, is the governing rule,” Citizens United v. FEC, 558
U.S. 310, 361 (2010), and that the general remedy for even “falsehood and fallacies” “is
more speech, not enforced silence,” Linmark Assocs. v. Willingboro Township, 431 U.S.
85, 97 (1977) (quoting Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J.,
concurring)).
For these reasons, plaintiffs’ motion for an injunction pending appeal is GRANTED
and it is ORDERED that defendants are enjoined from taking any action to enforce N.C.
Gen. Stat. § 163-274(a)(9) against plaintiffs pending further order of this Court.
The motion to expedite this appeal is GRANTED IN PART. Specifically, the Clerk
is directed to set a briefing schedule that will allow this appeal to be argued during this
Court’s regular December 2022 sitting.
Entered at the direction of Judge Heytens with the concurrence of Judge Diaz. Judge
Rushing filed a separate dissenting opinion.
For the Court
/s/ Patricia S. Connor, Clerk

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RUSHING, Circuit Judge, dissenting:
I respectfully dissent. Plaintiffs have not shown that they are entitled to the
“extraordinary relief” of “an injunction against enforcement of a presumptively
constitutional state legislative act” pending their appeal from the district court’s denial of
exactly that relief. Respect Maine PAC v. McKee, 562 U.S. 996, 996 (2010). The Supreme
Court has admonished that “[o]rdinarily, there should be no interference” with a State’s
enforcement of its criminal statutes. Younger v. Harris, 401 U.S. 37, 45 (1971) (internal
quotation marks omitted). Because Plaintiffs have failed to show the “extraordinary
circumstances” necessary to justify our interference at this stage, id., I would deny their
request to enjoin North Carolina officials from enforcing North Carolina law pending our
consideration of the merits.
Notably, Plaintiffs have not demonstrated they would suffer irreparable harm during
the pendency of this expedited appeal absent injunctive relief. No Plaintiff claims that their
speech is currently being chilled, or will imminently be chilled, because of the possible
future enforcement of the North Carolina statute. The plaintiff public relations firm avers
that it “intends to continue to work with North Carolina campaigns and candidates” but
“will need to reconsider [its] position in the event that political advertising in North
Carolina becomes a subject of criminal law enforcement.” D. Ct. ECF 5-2 at ¶ 12. That
doubly qualified statement cannot support a finding of irreparable harm, especially when
the political advertisement the State is investigating was last aired almost two years ago
and no Plaintiff claims an interest in airing that advertisement, or a similar one, during this
expedited appeal.

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On the other side of the balance, the Wake County district attorney’s interest is
significant. As the majority acknowledges, the two-year limitations period apparently will
soon expire, and if we enjoin the grand jury proceedings, the State will forever lose its
opportunity to enforce the law. The majority purports to know, on an undeveloped record,
that the district attorney’s injury is “self-inflicted.” I do not agree with that reading of the
limited record, and the State certainly does not owe us a more detailed explanation of its
internal investigation and deliberative process to justify enforcing its laws within the
relatively brief time period allotted by the state legislature. Moreover, I do not see how the
majority’s proposed tolling stipulation between Plaintiffs and the district attorney would
preserve the district attorney’s ability to prosecute the potential targets of the grand jury
investigation, which by all accounts include individuals who are not parties to this lawsuit.
As for the public interest, the majority’s speculation about the current campaign
cycle is out of place when its injunction does not reach any current campaign but is
restricted to these Plaintiffs and their political advertisement that last aired almost two years
ago. The people of North Carolina have an interest in letting North Carolina’s courts
construe this untested state statute in the normal course if it is actually enforced. Even
absent our intervention, an indictment may never issue—yet another reason to stay our
hand and follow the customary course of deciding constitutional questions on appeal only
after due deliberation.

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