State v. Taylor, 379 N.C. 589, 2021-NCSC-164 (Dec. 17, 2021)

The facts of this case were previously summarized following the Court of Appeals decision in State v. Taylor, 270 N.C. App. 514 (2020), available here. Briefly, the defendant in this case wrote several social media posts allegedly threatening an elected district attorney over her decision not to seek criminal charges in connection with the death of a child. The defendant was convicted of threatening a court officer under G.S. 14-16.7(a), and appealed. The Court of Appeals held that the defendant’s convictions were in violation of the First Amendment and vacated the conviction. The state sought and obtained discretionary review at the state Supreme Court. The higher court concluded that the defendant’s conviction was properly vacated, but remanded the case for a new trial rather than entry of a judgment of acquittal.

The Supreme Court began its analysis by reviewing the events that prompted the defendant’s Facebook posts, the contents of those posts, and the state’s evidence purportedly supporting the charges, such as evidence that the prosecutor was placed in fear by the threats. Next, the higher court summarized the opinion of the Court of Appeals, which held that the offense required proof of both general and specific intent on the part of the defendant. The appellate court held that the defendant could only be constitutionally convicted under this statute if he made a “true threat,” meaning that the defendant not only made a statement that was objectively threatening (i.e., one which would be understood by those who heard or read it as a serious expression of intent to do harm), but also that he made that statement with the subjective intent that it be understood as a threat by the recipient. Finding that the state failed to make a sufficient showing of those requirements, the Court of Appeals held the statements were protected speech under the First Amendment and vacated the conviction.

Undertaking its own review, the state Supreme Court noted that the First Amendment broadly protects the fundamental right of free speech, and only certain limited categories of speech involving obscenity, defamation, incitement, fighting words, and “true threats” can be constitutionally restricted. The court reviewed Watts v. United States, 394 U.S. 705 (1969), which distinguished true threats from other types of protected speech. The court identified three factors from Watts that were relevant to evaluating the case at hand, although no single factor is dispositive: (i) the statute at issue must be interpreted with the First Amendment in mind; (ii) the public’s right to free speech is even more substantial than the state’s interest in protecting public officials; and (iii) the court must consider the context, nature and language of the statement, and the reaction of the listener. Next, the court reviewed the fractured opinions from another true threats case, Virginia v. Black, 538 U.S. 343 (2003). After considering the contrasting interpretations offered by the state and the defendant in the present case as to how Black’s holdings should be construed, the court ultimately concluded that “a speaker’s subjective intent to threaten is the pivotal feature separating constitutionally protected speech from constitutionally proscribable true threats.” Based on the precedent above and reiterating the importance of the free speech interest at stake, the court held that a true threat is defined as “an objectively threatening statement communicated by a party which possesses the subjective intent to threaten a listener or identifiable group,” and “the State is required to prove both an objective and a subjective element in order to convict defendant under N.C.G.S. § 14-16.7(a).”

Applying that definition and framework, the state Supreme Court then considered whether the trial court erred by denying the defendant’s motion to dismiss. On a motion to dismiss, the question for the trial court is whether there is substantial evidence, when viewed in the light most favorable to the state, to support each element of the offense and find that the defendant was the perpetrator. In this case there was no dispute that the defendant wrote the posts at issue, and they contained ostensibly threatening language that was not clearly “political hyperbole” or other protected speech. The state Supreme Court acknowledged that cases raising First Amendment issues are subject to an independent “whole record review,” but explained that this supplements rather than supplants traditional appellate review, and it is not inconsistent with the traditional manner of review on a motion to dismiss. Under this standard of review, the trial court did not err by ruling that the state had presented sufficient evidence to withstand a motion to dismiss and submit the case to the jury.

However, because the trial court did not properly instruct the jury on the charged offense consistent with the subjective intent requirement under the First Amendment, the conviction was vacated and the case was remanded to the trial court for a new trial and submission of the case to a properly instructed jury.

Justice Earls concurred with the majority’s conclusion that the First Amendment requires the state to prove both the objective and subjective aspects of the threat, but dissented on the issue of whether the state’s evidence was sufficient to withstand a motion to dismiss in this case, and disagreed with the majority’s interpretation and application of whole record review. In Justice Earls’ view, the defendant’s Facebook posts could not have been viewed as a serious intent to inflict harm when considered in context by a reasonable observer, and even if they could, the state offered insufficient evidence to show that this was the defendant’s subjective intent.