Extortion doesn’t require ‘true threat’ analysis 

A “sugar baby” who threatened to include a Charlotte man in a racy memoir of their adulterous dating service trysts unless he paid her significant hush money wasn’t entitled to a “true threat” analysis before she was convicted of extortion, the North Carolina Court of Appeals has unanimously ruled in a matter of first impression. 

The defendant, Jamie Bowen, argued on appeal that the First Amendment to the U.S. Constitution requires the application of a “true threat” analysis to every anti-threat statute, but the Court of Appeals ruled that extortionate speech isn’t constitutionally protected because extortion, “though verbal, is a crime in and of itself.” 

“Extortion is speech that is integral to criminal conduct, notwithstanding the content of the speech,” Judge April Wood wrote for the court. “It therefore falls within the category of unprotected speech, and necessarily may be restricted.” 

Not the best arrangement 

According to the court’s April 5 opinion, the 28-year-old Bowen and her married “sugar daddy” began a brief sexual relationship in 2011 after meeting through the online dating service Seeking Arrangement. The man provided Bowen with “financial compensation” for her time, the opinion states. 

In December 2016, after the man had divorced and remarried, Bowen reached out to him on LinkedIn and through emails and certified letters to his home, informing him that she was going to publish a tell-all book about her experiences on the website, including their “paid sexual relationship.” She told the man that she may appear on the Dr. Phil show to promote the book and that he might be asked to appear as well. 

The man retained an attorney and ultimately reached out to detectives after Bowen continued to message him, hoping to persuade him to make a monetary offer in exchange for a confidentiality agreement—asserting that other men had offered her six figure sums to remain mum—and threatening to contact his current wife. 

Under the detective’s direction, the man offered Bowen $250,000. Bowen was arrested after accepting the offer and sending a confidentiality agreement to the man. Inside her home, detectives found confidentiality agreements but no evidence of a book in the works or of any contact with a publisher or talk show host. 

At trial, Mecklenburg County Superior Court Judge George Bell denied Bowen’s motion to dismiss. She was subsequently convicted of extortion and received a suspended sentence of two years of supervised probation. 

Bowen argued on appeal that the trial court had erred in denying her motion to dismiss because the First Amendment requires the state’s extortion statute to be construed to apply only to “true threats,” an objectively threatening statement communicated with the subjective intent to threaten, although the speaker need not intend to carry out the threat. 

Bowen relied on the appeals court’s 2020 decision in State v. Taylor, requiring a “true threat reading” to be applied to every anti-threat statute. In Taylor, the court overturned the conviction of a man whose Facebook posts were construed as threats to kill court officers. The state’s Supreme Court affirmed, finding that the defendant couldn’t be convicted “solely for publishing the messages contained” in the posts. 

No shield for criminal speech 

In Bowen’s case, the appeals court noted that any North Carolina statute that criminalizes speech, pursuant to the U.S. Supreme Court’s ruling in Watts v. United States, “must be interpreted with the commands of the First Amendment clearly in mind” and that the state, not the defendant, must prove that disputed speech is unprotected speech. 

The court further noted an emerging trend in appellate and federal courts toward holding that the First Amendment requires all statutes governing threats to be construed as requiring a true threat. But it declined to extend the true threat requirement to North Carolina’s extortion law because the act of extortion falls outside First Amendment protections. 

“As the Fifth Circuit colorfully expressed in [U.S. v.] Quinn, ‘it may categorically be stated that extortionate speech has no more constitutional protection than that uttered by a robber while ordering his victim to hand over the money, which is no protection at all,’” Wood wrote. 

The court determined that while the government generally may not proscribe speech, certain categories—defamation, fighting words, and true threats, among them—may be restricted where its benefits are outweighed by “social interest in order and morality.” And while the “true threat” requirement has been applied to speech surrounding political hyperbole, courts have been reticent to apply it to extortion. 

Among other cases, Wood cited a 2015 federal district court decision from New York, U.S. v. Kirsch, which found that true-threat jury instructions shouldn’t be read in conjunction with extortion statutes because the statutes already contain sufficient intent requirements, and there is thus “no need to further separate innocent conduct from wrongful conduct.” 

“We agree with the reasoning of the federal courts and hold that extortionate speech as prohibited by N.C. Gen. Stat. § 14-118.4 is not constitutionally protected speech,” Wood wrote. “Thus, a ‘true threat’ application and analysis … is unmerited.” 

Associate Attorney General Brian Miller represented the state. Assistant Appellate Defender Aaron Johnson represented the defendant. 

The 16-page decision is State v. Bowen (Lawyers Weekly No. 011-084-22). The full text of the opinion is available online at nclawyersweekly.com. 

Follow Heath Hamacher on Twitter @NCLWHamacher