N.C. Supreme Court Holds “True Threats” Exception Requires Purpose to Threaten,

Start at State v. TaylorThe North Carolina Supreme Court ruled Friday in favor of the petition (in an opinion written by Justice Michael Morgan).

David Warren Taylor, defendant posted several angry comments to his Facebook page on 24 August 2016. These messages expressed defendant’s disapproval with the decision of Ashley Welch (the area’s elected district attorney), not to prosecute parents after the child’s tragic death in Macon County. In the course of his diatribe defendant consumed an undisclosed, but clearly significant amount, of beer. Most defendant’s posts were scathing, inflammatory and ultimately political attacks on District Attorney Welch, as well the Macon County judiciary system.

Some posts included troubling language. In one post, the defendant stated that District Attorney Welch will be the “first to go” in case of a purportedly imminent “rebellion against Our Government”. A second comment by defendant stated, “[i]F [District Attorney Welch]Will not do anything. Then the death to him as well.” He also mentioned numerous firearms he owns and the willingness to use them against law enforcers if needed.

After publishing his last Facebook message, defendant rethought the idea of sharing his opinions unfiltered on social media in what is now known as “the modern public square.” However, before defendant could delete the rant from his Facebook page, one of his Facebook “friends”—a detective in the Macon County Sheriff’s Office—became concerned that the messages harbored content more sinister than intemperate venting. Detective took screenshots of the defendant’s comments and sent them along to the District Attorney Welch, Macon County Sheriff and North Carolina State Bureau of Investigations (SBI). SBI investigators visited defendant’s office the next day. The defendant was later arrested that afternoon and indicted by the N.C.G.S. § 14-16.7(a) for “knowingly and willfully” threatening to kill a court officer. The defendant was later convicted. He received a suspended sentence of 24 months of supervised probation and a $1,000 fine….

At its core, this case presents a single question: Does the Free Speech Clause … protect defendant from being convicted solely for publishing the messages contained in his Facebook posts? We conclude that it does, and therefore determine that his messages are shielded by the First Amendment….

Court ruled that “true threats” exemption to the First Amendment is only applicable when “a speaker’s subjective intent was to threaten” as well as the fact that the speech could be objectively viewed as a real threat. Mere negligence about the possibility that people would feel threatened by the statement—or presumably even recklessness or knowledge of that possibility—appears to be insufficient. The Supreme Court’s 2015 decision on this subject revealed a wide divide between federal appellate courts and state courts. U.S. against Elonis It was not resolved. The court found enough evidence to suggest that a jury could have made a threat. However, the judge ruled that the jury was not competent to convict without a finding of such purpose.

The most invective language that defendant used to attack the elected district lawyer, and which defendant admitted was posted on his personal social media pages, consisted of these statements:

  • She is a friend to many. [the elected district attorney]Share my post, she’ll be the first one to leave.
  • I would answer the deputy by asking if it is worth it. If he asked me if it was worth it, I would answer with a Shotgun pointed at him and an AR15 in his other arm. It doesn’t matter what happens to me when I walk in the door. It’s unlikely he will. I would open every gun I have…. Death to our so called judicial system ….
  • This is the way politics works. This is why I have harsh words for her, and all those who will listen and share them with her [social media] page.
  • If so, [vigilante justice]How to do it [ ]. They will get both. [the elected district attorney and “any other that will Listen”]The [mountain] justice they deserve…. If the head prosecutor refuses to do something, then she will also be executed. It was true. Now raid my house for communicating threats and see what they meet….
  • You can begin it at your house. It has to be at my house. If courts refuse to do what has been shown, then it’s up to the people. Yes, it is up to us to make justice. I’m always game to do so. Every day they make new ammunition!
  • Time is running out for the old Time mtn justice Yes [ ]It was so. Let them knock at my door.

All of the defendant’s words were true couldProtected speech is political hyperbole. Defendant’s tweets on social media are not political hyperbole. These statements of defendant should not be taken in isolation. They are better understood when they are viewed together. Therefore, a jury could reasonably consider these statements to be a threat to seriously inflict bodily injury on or kill the elected district attorney.

Defendant’s multiple uses of the word “death” in direct reference to the elected district attorney and the judicial system in which she was serving, defendant’s favorable reception to the exercise of “vigilante justice” and “old time mountain justice” for those individuals who are a part of the court system, defendant’s numerous representations of his willingness to utilize firearms to accomplish his manifesto, defendant’s several expressions of bravado concerning his commitment to employ firearms against any representative of the criminal justice system, and defendant’s repeated expression of the hope that the elected district attorney would become aware of defendant’s social media posts all combine to warrant consideration by a jury as to whether defendant has issued a true threat to inflict serious bodily injury upon or to kill the elected district attorney….

Justice Anita Earls abstained from the retrial. She concluded that “[a]A reasonable person who had seen Taylor’s posts on Facebook in its entirety could not see the messages as containing a serious intent to inflict harm upon District Attorney Welch.” “Even if Taylor satisfied the objective element of the test, it is difficult to prove that Taylor intended to use violence against District Attorney Welch.”

She pointed out the necessity of punishing real threats.

According to the First Amendment principles and relevant precedents, Taylor must be proven to have threatened Taylor. The true threats doctrine should not be limited because true threats may undermine the First Amendment’s values of free speech and civic engagement.

The State can be allowed to penalize true threats because it has the interest of “protecting people from fear of violence, disruption caused by fear, and the possibility of violent acts.” … If the cost of participating in public life is to be bombarded with serious threats of violence towards one’s self and family, many people will choose to forego contributing their voices to the “free exchange [that]Facilitates informed public opinion which is transmitted to legislators and helps create laws that reflect the People’s will. It degrades “the marketplace of ideas,” upon which “[o]ur representative democracy” depends. The result is that the public will not have the opportunity to access “information.” [which]Public debate is necessary for democracy to function.

However, true threats go beyond dissuading others from joining the “marketplace of Ideas.” Truly, threats can interfere with the freedom to exercise AllThe First Amendment guarantees the First Amendment’s “cognate rights and indispensable democratic freedoms.” True threats can make it difficult for individuals to participate in institutions, processes and daily interactions that help shape American society. People may decide to ignore their rights of association with other like-minded citizens or to protest existing policies and to petition government officials or publish their opinions for wide distribution when they are threatened with retributory violence. Ashutosh Bhagwat explains that it is these rights that “protect and foster the kind of active citizenship, collective action that have been at the heart of our system since its inception.” The Democratic First Amendment (Nw. U. L. Rev. 2016, the proliferation of real threats poses a threat to democracy’s vitality.

The First Amendment is particularly troubled by true threats because the fear of violence undermines our government’s legitimacy. The history of both our country and that of the United States shows how actual and threatened violence has prevented citizens from exercising the democratic rights they have formally earned. See, e.g., David Zucchino, Wilmington’s Lies: The Murderous Coop of 1898, and the Rise of White SupremacyAtlantic Monthly Press (2020). Our First Amendment doctrines promote the proliferation of threats making the reasonable fear that imminent violence pervasive in political life. The First Amendment has lost its purpose. R.A.V.The concern was that violence threats being allowed to continue unpunished might lead to more violence in the real world. A First Amendment which fosters political violence is self-defeating, because a society which settles political disputes by resorting to violence—or a society which is forced to settle political disputes in the looming shadow of violence—cannot function as a self-governing democracy.

This reality highlights the danger that a narrow definition of what is a threat could give legitimacy to political changes that go against everything that the First Amendment represents. However, it is important to remember the First Amendment’s primary interest in encouraging free speech and the enormous value this provides for our governance system. Although the issue speech may appear to many to be vulgar, caustic or fantastical to some, this interest is not insurmountable. Our system works best when people are active, collectively, respectful, sometimes even incendiary.

She concluded, however, that Taylor’s speech should not be considered an exception in this instance:

The majority asserts that Taylor’s statements are being assessed in the full context. However, they instead focus on snippets and “strident languages” that the majority concludes do not “represent mere political hyperbole as an issue of law.” It fails to consider how Taylor’s statement’s context might have helped a normal observer interpret the language Taylor chose. Taylor’s statements on Facebook were not understood by a rational observer who saw them in all their context.

Even the statements Taylor made which most plausibly read to suggest the possibility oF actual violence—that District Attorney Welch “will be the first to go” and that “[i]f [she] won’t do anything, then the death to her as well”—are not direct threats of harm. Both of these statements can be viewed as conditional. Taylor’s statements about what he would do are conditional. It is impossible to believe that the hypothetical and conditional statements Taylor made were intended to cause physical harm to District Attorney Welch, given his context.

Taylor made statements suggesting that he could seek to correct perceived injustices using other methods than advocacy. But none of those statements implied that Taylor was going to attack District Attorney Welch directly with violence. Taylor made statements that reference violence, including his pledge to open “every gun” if law enforcement invaded his house; and his assertion that he was “always ready” to “administer justice” since “[t]Hey, make new ammunition every day!”, his reply was “If that’s all it takes”, when a Facebook friend asked for “vigilante Justice” and his declaration that “it was time to go” [t]ime m[ountain]Taylor’s justice” would be delivered “[r]He was tired of political bullshit, regardless of the laws or court rulings. These statements do not specifically threaten District Attorney Welch with violence.

Also, messages advocating the use of violence for political change are not the same message as those expressing a serious intention to cause harm to a particular person. It is possible to “remove” protected political speech.[d] … from the protection of the First Amendment” merely because it contains “Advocate“The use of violence or force.” The posts do not connect Taylor’s willingness to use violence with his remarks about District Attorney Welch’s future, if certain things happen. Taylor’s messages are nothing but a reflection of the deepest feelings he has about Macon County’s grave injustice.

Taylor made his threats during a heated conversation about political issues of concern to Taylor, his Facebook friends and himself. It is important to note that Taylor made a threat in middle of an ongoing conversation about political topics. This is relevant for determining what conclusions one could draw from language that seems only vaguely violent. Taylor said his threats in context of his political views while there was a political crisis that was just emerging. This information is pertinent to what a listener might consider when trying to determine the intent of Taylor’s comments. Taylor also removed Taylor’s messages from his Facebook account shortly after publishing them. The majority of the messages fail to take into consideration this context.

Taylor’s diatribe does not contain any language that supports the belief that Taylor intended to “do anything specific” or do something at any given time. The Supreme Court of Colorado explained that the inquiry into true threats should include “whether the threat includes accurate details tending increase its credibility.” Taylor here did not give a date, time or place nor a method of executing his threatened threat. There is no evidence to suggest that Taylor considered acting on the threats.

Others courts place a lot of importance on the absence or presence of these details when deciding whether defendant’s statements can reasonably be understood as an objective danger. The Supreme Court of Washington, for example, concluded that “ample evidence could be used to determine that a reasonable jury could decide that”. [a defendant’s]Threats were “true threats” based partly on defendant’s “specifically stated that “he wanted to murder them with his naked hands, by strangulation’.” He also “repeated his desire for killing his neighbors” multiple times and previously threatened his neighbors using a chainsaw.

The Massachusetts Supreme Judicial Court ruled that there was not enough evidence to convict the defendant for posting a photo of him holding a gun and the caption, “[m]I will not make any mistake in trying to bring you two stupid people to justice.” Because “nothing about this image indicates a clear intention to commit violence.” While Taylor’s post may appear “slightly disturbing” or ominous, they don’t support the conclusion that Taylor wanted to hurt District Attorney Welch. Taylor and District attorney Welch have a longstanding cordial relationship. There was also no evidence to suggest that Taylor would engage in violent behavior. This context is crucial in understanding the meanings that Taylor’s posts could have for a rational person.

It is especially telling to see the reactions of those who interacted with Taylor while his diatribe unfolded. Take, for example: WattsThe Supreme Court noted that it was noteworthy that the Supreme Court had said “[the defendant]After the performance, the audience laughed. [purported threat]” It was made.” The Court of Appeals stated that

The defendant was engaged in heated discussions, or “debates,” with Facebook friends about a political issue. This discussion was emotional due to content and feelings shared, most likely incorrectly, by the D.A. Welch incorrectly declined to bring the parents in court. Facebook can have the “public square” status, but may feel safer to post controversial topics and make boastful, hyperbolic or insensitive statements. It is usually known that the audience members are also posted, so there can be a feeling of belonging and community. All responses to Defendant’s Facebook posts were supportive, according to the record. None of the Facebook comments indicated any concern about Defendant’s plans to kill D.A. Welch. Defendant posted on Facebook to express his emotions publicly but only in the “most significant place”.[ ] … for the exchange of views.”

There was no indication that any of the participants to this conversation had been concerned about Taylor planning to hurt District Attorney Welch. The only person who did find Taylor’s messages concerning—the detective in the Macon County Sheriff’s Office—was an “Unintended recipient[ ]”Who “stumbles?”[d]”Upon” the postings, and not someone who’s reaction is representative of what a rational person would make with complete knowledge of the surroundings.

Taking this evidence in the light most favorable to the State, a reasonable person who encountered Taylor’s statements—and who was familiar with the context in which they were made—could, at most, conclude that Taylor communicated a statement containing an ambiguous, allusive threat of violence to be carried out in some unknown way, by some unknown person, at some unknown time, after the occurrence of two vaguely defined events which may or may not have ever occurred. It is not the sort of statement the First Amendment allows State to criminally penalize. I believe that Taylor’s message was not one that District Attorney Welch would have understood as a threat of harm, regardless of all facts that are disputed.