In a lawsuit filed by Stein’s legal team in July of this year, they claimed that the advertisement in question was a “corrective political advertisement” designed to strike back against an allegedly misleading claim by O’Neill that Stein himself had not acted on 15,000 rape kits while serving as attorney general.
Stein's legal team also called for the statute to be declared unconstitutional in the lawsuit.
In 2019, a fact check from UNC Media Hub found that O’Neill’s allegation was inaccurate. It noted that the untested rape kits were in the hands of individual law enforcement agencies across the state, which Stein does not have direct control over.
Freeman's investigation
Freeman’s office is investigating whether Stein's ad violated state law.
She said O’Neill is not under investigation because the Stein campaign did not file a complaint with the NCSBE.
Freeman’s initial decision to proceed with the investigation of Stein has left some observers confused.
Jeffrey Billman, a contributor to The Assembly and former editor-in-chief for INDY Week, said the actions of Freeman, a Democrat, seem to have alienated her from some members of her party.
“She’s burning bridges left and right in the party over something that is highly sketchy constitutionally — a law that’s not likely to pass muster, has never been enforced in the state,” he said.
Freeman said she is not aware of any previous prosecutions under the statute in question.
In a letter to Freeman, John Wallace, counsel to the North Carolina Democratic Party, requested that Freeman's office apply the same standard to both O’Neill and Stein by investigating O’Neill as well.
Wallace wrote that Freeman’s refusal to investigate O’Neill because Stein did not file a complaint is not grounded in law.
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Wallace said that, if applied more broadly, Freeman’s position would make it so that if the NCSBE refused to investigate an election-related crime, the accused individual could not be prosecuted.
"Action by a district attorney is nowhere conditioned upon action by the State Board of Elections," Wallace said in the letter.
He added that Freeman can and should initiate prosecution against O'Neill.
"Your failure to do so will suggest bias or favoritism," Wallace said in the letter.
Freeman said she recused herself and left the case to Wake County Assistant District Attorney David Saacks to avoid allegations of bias.
“Our responsibility is to enforce the law that the General Assembly enacts, and so ultimately the grand jury of Wake County will be in a position to determine whether they believe this is a case that should move forward if a presentment is provided to them,” she said.
On Monday, the Wake County grand jury took steps to potentially charge Stein but did not yet formally charge him, according to The News & Observer.
Legal standing of the claims
Stein’s lawyers have argued that the statute upon which the investigation is based violates the First Amendment.
Amanda Martin, supervising attorney at Duke’s First Amendment Clinic, said both O’Neill’s and Stein’s claims were examples of figurative political speech, which has been frequently protected by state and federal courts.
She said she believes the statute is patently unconstitutional because it would criminalize this figurative political language.
“I think, ultimately, the courts will find that Stein’s campaign ad was protected speech,” Martin said.
Billman said that prosecution under this statute could lead to an unsustainable precedent.
“If you’re going to start prosecuting politicians for lying in campaign ads, we’re going to run out of politicians pretty quickly,” he said.
Michael Bitzer, a political science professor at Catawba College, said the courts will have to weigh whether Stein’s and O’Neill’s comments were merely rhetorical tools or attempts to deliberately mislead voters.
“As I tell my students, words have meaning,” he said. “I think the notion of (the kits) 'sitting on a shelf' is carrying a lot of weight in this particular battle between O’Neill and Stein.”
N.C. Rep. Jim Perry, R-Lenoir, Wayne, said in an email he thinks political candidates should be punished for outlandish and misleading accusations.
"I don’t think many North Carolinians believe any of us should be able to knowingly lie about our opponent because of 'free speech'," he said.
Wallace said that because the rape kits that O’Neill described were not in Stein’s possession, he expects the Stein advertisement to be defended in court as a valid response to O’Neill’s claims.
“We certainly don’t want to encourage the communication of falsehoods, but this was part of a vigorous public debate, the kind of public debate that we want to encourage — not discourage — with criminal prosecutions,” he said.
The News & Observer reported that the grand jury requested that the Wake County district attorney's office present an indictment to them — something Freeman said could happen as soon as September.
@IanWalniuk
@DTHCityState | city@dailytarheel.com
