State v. Shackelford, ___ N.C. App. ___, 825 S.E.2d 689 (Mar. 19, 2019)

Concluding that application of the stalking statute to the defendant violated his constitutional free speech rights, the court vacated the convictions. The defendant was convicted of four counts of felony stalking based primarily on the content of posts made to his Google Plus account. On appeal, the defendant asserted an as-applied challenge to the stalking statute, G.S. 14-277.3A. The court first rejected the State’s argument that the defendant’s Google Plus posts are excluded from First Amendment protection because they constitute “speech that is integral to criminal conduct.” The court reasoned that in light of the statutory language “his speech itself was the crime,” and no additional conduct on his part was needed to support his stalking convictions. Thus, the First Amendment is directly implicated by his prosecution under the statute.

            The court next analyzed the defendant’s free speech argument within the framework adopted by the United States Supreme Court. It began by determining that as applied to the defendant, the statue constituted a content-based restriction on speech, and thus that strict scrutiny applies. It went on to hold that application of the statute to the messages contained in the defendant’s social media posts did not satisfy strict scrutiny.

            Having determined that the defendant’s posts could not constitutionally form the basis for his convictions, the court separately examined the conduct giving rise to each of the convictions to determine the extent to which each was impermissibly premised on his social media activity. The court vacated his first conviction because it was premised entirely upon five social media posts; no other acts supported this charge. The second and third charges were premised on multiple social media posts and a gift delivery to the victim’s workplace. The gift delivery, unlike the social media posts, constituted non-expressive conduct other than speech and therefore was not protected under the First Amendment. However, because the statute requires a course of conduct, this single act is insufficient to support a stalking conviction and thus these convictions also must be vacated. The defendant’s fourth conviction encompassed several social media posts along with two emails sent by the defendant to the victim’s friend. Even if the emails are not entitled to First Amendment protection, this conviction also must be vacated. Here, the jury returned general verdicts, without stating the specific acts forming the basis for each conviction. Because this conviction may have rested on an unconstitutional ground, it must be vacated.