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Jury should decide whether posts were ‘true threats’ 

The North Carolina Supreme Court has ordered a new trial for a man who allegedly used social media to make drunken death threats against a district attorney, reversing state’s Court of Appeals order to acquit the man because the trial court had failed to instruct the jury on a “true threat” to a court officer. 

In its Dec. 17 opinion, the Supreme Court found that defendant David Taylor’s speech was protected by the 1st Amendment, and his conviction for knowingly and willfully threatening to kill a court officer had to be vacated because of the improper jury charge. But the high court found that there was enough evidence to withstand Taylor’s motion to dismiss to charges against him, paving the way for a retrial. 

“Because … the facts presented by the State could have allowed a reasonable jury to conclude defendant uttered a true threat, a properly instructed jury must be allowed to consider this question,” Justice Michael Morgan wrote for the court. 

Facebook official 

When prosecutors declined to charge the parents of a Macon County child who died under unusual circumstances, David Taylor took to Facebook—inebriated, the state says—to criticize the justice system and District Attorney Ashley Welch. Taylor worked in the Macon County courthouse and occasionally spoke with Welch, whom he supported in her campaign for election. 

But when Welch decided against prosecuting the child’s parents after their account of the child’s death from a virus was confirmed, Taylor made the public posts encouraging the administration of “old time [mountain] justice” by the public and stating that he could easily purchase ammunition and would use his firearms against law enforcement officers if they showed up at his home for communicating threats. 

Several posts referenced Welch’s death for her lack action. Taylor deleted the posts hours later, but not before a detective took screenshots of them and sent them to Welch and the sheriff, who forwarded them to the state’s Bureau of Investigation. Taylor was arrested despite telling investigators that he meant no harm to Welsh and asking them to apologize to her on his behalf. 

At trial, Taylor contended that he hadn’t communicated a “true threat” to Welch and that the charge violated his constitutional right to free speech. He unsuccessfully moved to dismiss and requested jury instructions distinguishing “true threats” from “political hyperbole.” But Macon County Superior Court Judge Gary Gavenus accepted the state’s position that it wasn’t required to prove that the threat would cause a reasonable person to believe that it was likely to be carried out, and that any First Amendment arguments would appropriately be raised on appeal. 

Taylor was convicted and sentenced to two years’ probation and a fine. 

Taylor appealed the ruling, and in 2018 the Court of Appeals unanimously agreed with him, vacating the verdict and judgment against him and holding that the state needed to prove that Taylor had both general and specific intent to communicate a true threat, and a reasonable person wouldn’t have understood his Facebook posts as a serious intent to kill the district attorney. 

Better left unsaid 

The high court noted that while the state has an “overwhelming” interest in protecting public officials, its interest in protecting constitutionally protected speech, even if controversial, is greater. Certain speech—including fighting words, obscenity, defamation, and true threats—can be regulated, but neither the state Supreme Court nor the U.S. Supreme Court has explicitly defined the scope of the true threats exception to the First Amendment. 

The justices said that the exception shouldn’t sweep too broadly, however, relying on several cases from other jurisdictions to define true threats, including Watts v. United States, a 1969 U.S. Supreme Court decision requiring states to consider the context in which statements are made, the nature of the language, and the reaction of the listeners. 

More recently, in 2003’s Virginia v. Black, a case involving cross-burning, a divided U.S. Supreme Court held that the state could single out a “particularly violent form of intimidation,” including true threats, which it defined as “an objectively threatening statement communicated by a party which possesses the subjective intent to threaten a listener or identifiable group,” although the speaker need not actually intend to carry out the threat. 

Again quoting Black, Morgan wrote that “An individual who communicates a true threat hopes to influence public decision-making not through legitimate means—the painstaking work of convincing fellow citizens or political leaders to change their actions or views—but by “creat[ing] a pervasive fear in victims that they are a target of violence.” 

Justice Anita Earls concurred in part and dissented in part with the decision. Earls agreed that the state must prove that a reasonable observer would understand a statement to contain a threat of violence that was communicated with the subjective intent to threaten an individual or identifiable group, but she rejected the idea that the state offered sufficient evidence to withstand Taylor’s motion to dismiss, opining that the Facebook posts didn’t constitute a serious intention to inflict bodily harm. 

Assistant Solicitor General Nicholas Brod and Deputy Solicitor General Ryan Park represented the state. Assistant Appellate Defender Aaron Johnson represented the defendant. Johnson did not immediately return a request for comment on the case. 

The 65-page decision is State v. Taylor (Lawyers Weekly No. 010-160-21). The full text of the opinion is available online at 

Follow Heath Hamacher on Twitter @NCLWHamacher 

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