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Free speech protected woman’s stalker

 

A Charlotte man who was convicted of cyber-stalking a woman he met at church has had those convictions overturned after the North Carolina Court of Appeals ruled that the messages he posted about the woman on his social media account were protected by the First Amendment.

Brady Shackelford concluded that the woman, referred to only as “Mary” in the court’s opinion, was his “soul mate” after encountering her briefly at the church. Shackelford sent Mary an email and then a letter, the contents of which led Mary to ask Shackelford not to contact her further. A reverend at the church also instructed Shackelford not to contact her again.

Shackelford then began publishing posts about Mary on his Google+ account. (Google+ was Google’s very unsuccessful attempt to launch a rival to Facebook.) After Shackelford sent cupcakes to Mary’s office, she obtained a no-contact order against him. The order prohibited Shackelford from posting any information about Mary on social media.

The posts continued, however, and in several of them Shackelford referred to Mary as his “future wife” or “wife.” The court’s opinion recounts the messages in detail; their sheer creepiness is difficult to fully convey in a newspaper that values brevity.

Shackelford was initially indicted on eight counts of felony stalking, but four counts stemming from his violations of the no-contact order were dismissed due to concerns over their constitutionality. He was convicted of the other four, all for posts published after the reverend instructed him to back off.

Shackelford challenged the constitutionality of North Carolina’s stalking statute as it had been applied to him, arguing that his convictions violated the free speech rights protected by the First Amendment. Judge Mark Davis, writing for a unanimous panel in a March 19 opinion, agreed. (Davis was appointed to the state’s Supreme Court on March 11, subsequent to his joining the court’s opinion.)

Prosecutors argued that the Google+ posts were not entitled to free speech protection at all since they were speech integral to criminal conduct, which falls outside the shelter of the First Amendment. But Davis found this reasoning to be circular—the speech was integral to criminal conduct only because the statute had made the speech illegal.

“Pursuant to the language of [the law against stalking], no additional conduct on his part was needed to support his stalking convictions,” Davis said. “Rather, his speech itself was the crime.”

The judges also found that the speech-restricting aspects of the statute were content-based rather than content-neutral. The court cited a 2016 decision by the state’s Supreme Court in State v. Bishop striking down a state law that had criminalized cyber-bullying. The Supreme Court concluded that the statute was a content-based speech restriction because it “makes it impossible to determine whether the accused has committed a crime without examining the content of his communication,” a dynamic that likewise existed in Shackelford’s case.

At that point the die was largely cast. Content-based restrictions on speech are unconstitutional unless they serve a compelling governmental interest and are narrowly tailored to effectuate that interest—a standard that very few laws are able to meet.

“Even assuming [for the sake of argument] that the statute serves a compelling governmental interest in preventing the escalation of stalking into more dangerous behavior, we are not persuaded that the application of [the law] to Defendant’s posts represented the least restrictive means of accomplishing that goal,” Davis wrote.

Davis noted that strict enforcement of the no-contact order, or at least the portions of it that prohibited Shackelford from approaching Mary or directly contacting her, clearly represented a less restrictive means by which the state could have pursued its interest in preventing him from engaging in criminal acts against her.

Unlike in the case striking down the cyber-bullying law, Shackelford was not challenging the validity of the anti-stalking law—which prohibits any willful harassment that would cause a reasonable person to fear for their safety or suffer emotional distress—on its face; as a result, the statute remains valid law.

The 37-page decision is State v. Shackelford (Lawyers Weekly No. 011-076-19). The full text of the opinion is available online at nclawyersweekly.com.

Follow David Donovan on Twitter @NCLWDonovan

 


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