chevron-down Created with Sketch Beta.

Litigation News

Litigation News | 2023

Law Punishing Political Speech Likely Unconstitutional

Alenah A. Luthens


  • In Grimmett v. Freeman, the Fourth Circuit vacated a district court's order, finding a North Carolina libel statute likely unconstitutional.
  • The statute criminalizes false or reckless statements about political candidates, even if truthful, violating the First Amendment.
  • The court also ruled that the statute makes impermissible content-based distinctions, raising concerns about suppressing free speech.
Law Punishing Political Speech Likely Unconstitutional Barraud

Jump to:

Libel statutes aimed at criminalizing “derogatory” speech about political candidates likely violate the First Amendment, according to a federal appellate court, because such laws undermine the protection the First Amendment affords political speech. ABA Litigation Section leaders agree with the appellate court’s determination that the word “derogatory” improperly encompasses true statements, and zeroing in on speech about political candidates constitutes impermissible content discrimination.

Statute Impermissibly Criminalized True Statements

In Grimmett v. Freeman, the plaintiffs—a political candidate and his campaign team—ran a political ad stating that an opponent “left 1,500 rape kits on a shelf leaving rapists on the streets.” Roughly two years later, a prosecutor informed the plaintiffs that the district attorney planned to pursue charges against them for violating a 90-year-old criminal libel statute. The statute criminalizes “derogatory reports” regarding “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.” The plaintiffs immediately sought injunctive and declaratory relief in U.S. District Court for the Middle District of North Carolina that the libel statute was unconstitutional.

The district court rejected the plaintiffs’ request for a preliminary injunction because it found the plaintiffs were unlikely to succeed on the merits. The plaintiffs appealed to the U.S. Court of Appeals for the Fourth Circuit which vacated the district court’s order. “Not only have plaintiffs shown a likelihood of success, ‘it is difficult to imagine them losing[,]’” the federal appeals court stated. The court’s reason for vacating the lower court’s order was twofold: (1) the statute ostensibly criminalizes “at least some truthful statements,” and (2) even if the statute does not criminalize true statements, “it makes impermissible content-based distinctions in selecting which speech to forbid.”

As to the first reason, the court found that a plain reading of the statute revealed it encompasses truthful statements. “Under this law, prosecutors need never show—or even allege—a ‘derogatory’ statement was false so long as they contend the speaker acted with reckless disregard of its truth or falsity,” the court observed. The court concluded the First Amendment prohibits the statute’s apparent attempt to criminalize truthful criticism.

Content-Based Distinctions Fail Strict Scrutiny

Even if the statute does not encompass true statements, the appellate court found it nonetheless “fails constitutional scrutiny because it draws impermissible content-based distinctions in identifying which speech to criminalize.” The court observed that the statute engages in “textbook content discrimination” by limiting its reach to statements about political candidates.

“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 court noted. The fact that the statute is limited to statements “calculated or intended to affect the chances of such candidate[s] for nomination or election” only exacerbates the problem, the court explained.

The statute’s “careful limitation to only a subset of derogatory statements to which elected officials may be particularly hostile” rendered it unlikely to survive constitutional muster. By focusing on speech about political candidates, the statute raises the “possibility that official suppression of ideas is afoot,” reasoned the court. The statute was not necessary to achieve a compelling state interest because a statute that applied equally to all individuals would accomplish the same purpose. Thus, the plaintiffs were likely to prevail on the merits of their First Amendment challenge to the statute, the court held.

Section Leaders Agree with the Appellate Court’s Ruling

Litigation Section leaders agree that the libel statute at issue likely violates the First Amendment. They are cognizant, however, of the delicate balance libel statutes must strike between sanctioning those who knowingly spread blatant lies and encouraging robust discussion of important political issues.

“The Fourth Circuit got this one right,” declares Jonathan W. Peters, Athens, GA, chair of the Section’s First Amendment Subcommittee of the Civil Rights Litigation Committee. “The First Amendment provides the highest level of protection to speech about politics and public affairs, and libel law provides the lowest level of protection to public officials and figures, in part on the theory that they can defend themselves more easily through public channels,” Peters contends.

This decision appears to follow the lead set by the U.S. Supreme Court. “The Supreme Court has recently protected even false speech in the ‘stolen valor’ case of United States v. Alvarez. Given the Supreme Court’s recent precedent and its protection for political speech in particular, I would be surprised if this decision were reversed,” opines Cassandra Burke Robertson, Cleveland, OH, chair of the Section’s Civil Rights Litigation Committee.

But the risk of falsehoods in the political process remains a concern. “Individuals need all the information possible to exercise their democratic rights, but that becomes very problematic when you have the spread of false information and people making decisions based on downright lies. So it makes sense to me that states would be trying to pass or resurrect some of these statutes for false speech and to have real sanctions for false speech,” Robertson reasons.

Even accounting for constitutional issues, action to ensure election truth may be warranted. “I am sympathetic to the plight of individuals in the age of ‘alternative facts.’ Individuals should not be able to lie with impunity,” declares Carlos Moore, Grenada, MS, cochair of the Section’s Civil Rights Litigation Committee.