Applying an anti-threat statute to convict a defendant who published Facebook posts about a local district attorney violated the poster’s First Amendment rights, the North Carolina Court of Appeals has ruled, vacating his conviction.
Unhappy with Macon County District Attorney Ashley Welch’s decision not to prosecute a case, David Warren Taylor took to Facebook, posting comments including “[P]eople question why a rebellion against our government is coming? I hope those that are friends with her share my post because she will be the first to go…” and “If our head prosecutor won’t do anything then the death to her as well.”
The posts were visible to Taylor’s Facebook friends for one to two hours until he deleted them. One of his friends took a screenshot of the posts and shared them with Welch and the sheriff.
Taylor was prosecuted under N.C.G.S. § 14-16.7(a) for threatening a court officer. At trial, he argued that he knew it was against the law to threaten to kill a public official and that he had no intention of making anyone feel threatened. He requested a jury instruction pursuant to the U.S. Supreme Court’s 1969 decision in Watts v. United States, which held that a person can’t be charged or convicted under an anti-threat statute unless the state proves that the purported threat constituted a “true threat.”
The trial judge denied the motion and Taylor was convicted. He appealed, arguing that the statute was unconstitutional as applied to his case because the state had failed to prove the “true threat” element as required by the First Amendment.
In a March 17 opinion written by Chief Judge Linda McGee, a unanimous Court of Appeals panel agreed.
“We hold that ‘true threat’ must be included as an essential element of the statute,” McGee wrote. “The First Amendment requires that an anti-threat statute such as N.C.G.S. § 14-16.7(a) be construed so that the word ‘threat’ is read as ‘true threat,’ and that the State prove a ‘true threat,’ to the jury or trier of fact, beyond a reasonable doubt. Therefore, ‘true threat’ must be incorporated into the definition of N.C.G.S. § 14-16.7(a) if the statute is to be held constitutional.”
What the statute requires
Noting that relevant issues regarding “true threats” have yet to be settled by North Carolina courts, McGee emphasized that the freedom of citizens to express dissatisfaction with government action “is at the core of the First Amendment” and that “courts can, and must, if possible, read constitutional requirements into a statute when they are not expressly included.”
In addition, the U.S. Supreme Court construes statutes that regulate speech narrowly, “proof of some level of intent is required for prosecution pursuant to an anti-threat statute” and if “state-law standards conflict with constitutional requirements, the state law must give.”
“When a criminal statute is written without expressly including, as elements, the requirements of the First Amendment, the statute must be construed and applied at trial with the First Amendment requirements included as essential elements of the statutory crime,” McGee wrote, noting that this holding is in line with other jurisdictions.
The First Amendment also requires a specific intent element be read into anti-threat statutes, McGee wrote, tested from the viewpoint of “an objective, reasonable person considering the alleged threat in full context.”
So how does one define a “true threat”? Speech can’t be punished simply because it includes “vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials,” McGee wrote, and so that excludes “jest, idle talk or political hyperbole.” Instead, a “true threat” is “a statement where the speaker intends to communicate, to a particular individual or group of individuals, a threat, being ‘a serious expression of an intent to commit an act of unlawful violence.’”
Putting the pieces together, McGee said that in order to convict a defendant under the statute, the state must prove, beyond a reasonable doubt, that “(1) the defendant; (2) knowingly and willfully; (3) made a threat; (4) constituting a ‘true threat,’ meaning a statement ‘that an ordinary, reasonable [person] who is familiar with the context in which the statement [wa]s made would interpret as a serious expression of an intent to do harm; (5) to a court official; (6) knowing the court official was a court official; and (7) when the defendant communicated the statement, the defendant specifically intended the statement to be understood by the court officer as a real threat expressing the defendant’s intention to carry out the actions threatened.”
State didn’t fulfill requirements
McGee found that the state failed to pass constitutional muster with its case against Taylor. The language he used in his Facebook posts was “clearly political hyperbole and protected speech,” McGee wrote, and on its face was “not clearly a threat, much less a ‘true threat.’”
“‘She will be the first to go’ could mean ‘she will be the first to die’; but even if that were its meaning, there are no specifics that would suggest an actual intent that D.A. Welch be killed, by Defendant or anyone else, and there is nothing in this statement indicating, assuming Defendant actually hoped for D.A. Welch’s death, that he had any intent to kill her,” McGee wrote.
Setting the posts in context, McGee noted that an hour passed before the posts were reported, Welch herself demonstrated a “low level of concern” about the statements, and law enforcement did not act in a manner suggesting that Taylor was considered a serious threat to her. The posts also lacked any specifics such as time, date, place, method or other circumstances that would suggest Taylor was actually planning to kill Welch.
Another significant factor was the fact that Taylor posted his comments on Facebook.
“It is general knowledge that Facebook, like many other sites on the Internet, often serves as a place where people air their grievances,” McGee wrote. “Further, it is not uncommon for some of the posts on Facebook and other Internet platforms to be ‘over the top,’ exaggeratedly offensive, threatening or irrational.”
Deleting his posts within a few hours and asking a sheriff’s deputy to convey his apology to Welch also signaled his lack of intent, McGee wrote. As another basis for vacating Taylor’s conviction, McGee said the evidence was insufficient to meet the element of specific intent.
Assistant Appellate Defender Aaron Thomas Johnson, who represented Taylor, did not respond to a request for comment. A spokesperson for the Attorney General’s Office declined to comment except to say that the office is reviewing the decision.
The 123-page decision is State v. Taylor (Lawyers Weekly No. 011-079-20). The full text of the opinion is available online at nclawyersweekly.com.l