# Durham Cnty. Dep't of Soc. Servs. v. Wallace

> Court of Appeals of North Carolina · September 3, 2024

URL: https://www.frixlaw.com/law-library/cases/10569557

## Case

- **Court:** Court of Appeals of North Carolina
- **Decided:** September 3, 2024
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10569557

## How later opinions describe it (automated extraction)

- holding that, even under strict scrutiny, a 100-foot boundary may be “perfectly tailored” to achieve the government’s interest
- recognizing that “particular categories of speech [ ] receive no First Amendment protection; these categories include ‘obscenity, defamation, fraud, incitement, and speech integral to criminal conduct.’”
- holding protecting children from physical and psychological harm is a compelling interest

## Opinion text

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA23-96

Filed 3 September 2024

Durham County, No. 22 CVD 3028

DURHAM COUNTY DEPARTMENT
OF SOCIAL SERVICES, Petitioner,

v.

AMANDA SHENELLE WALLACE, Respondent.

Appeal by Respondent from order entered 24 August 2022 by Judge James T.

Hill in Durham County District Court. Heard in the Court of Appeals 7 June 2023.

Stam Law Firm, PLLC, by R. Daniel Gibson, for the respondent-appellant.

Teague Campbell, Dennis & Gorham, L.L.P., by Patrick J. Scott, Natalia
Isenberg and Jacob H. Wellman, for the petitioner-appellee.

The ACLU of North Carolina Legal Foundation, by Samuel J. Davis, Kristi
L. Graunke, and Muneeba S. Talukder, amicus curiae.

STADING, Judge.

Respondent Amanda Wallace appeals from a civil no-contact order entered

pursuant to the Workplace Violence Prevention Act. N.C. Gen. Stat. §§ 95-260 to -

271 (2023). After carefully reviewing the trial court’s no-contact order, we hold that

its findings of fact are insufficient to permit meaningful appellate review and thus

vacate and remand the order for further proceedings.
DURHAM CNTY. DEPT. OF SOC. SERVS. V. WALLACE

Opinion of the Court

I. Background

Respondent previously worked as a child abuse and neglect investigator for

Petitioner Department of Social Services (“DSS”) in Durham, North Carolina.

Dissatisfied with DSS’s child-placement policies, Respondent pursued external

advocacy. She founded an organization, Operation Stop Child Protective Services

(“Operation Stop CPS”), purporting to “be a solution, to give families a voice and

empower them to be able to speak out about what’s going on.” Operation Stop CPS

maintained a social media presence, rallied against DSS’s policies, and protested

against DSS.

Respondent was involved with many of these protests against what she terms

“the kidnapping of children in Durham County.” She also led these protests near

DSS’s office at the intersection of East Main Street and Queen Street in Durham.

Respondent and at least two of her fellow Operation Stop CPS advocates protested

near the personal residence of the Durham DSS Director on 24 May 2022 and 13

August 2022. As a result of these protests, DSS employees began to express concerns

about their personal safety and that of their family members.

In response to these concerns, on 16 August 2022, Petitioner filed a complaint

for a civil no-contact order on behalf of itself and its employees to enjoin Respondent

“and her followers” from contacting either party at their office or home under North

Carolina’s Workplace Violence Prevention Act (the “WVPA” or “Act”). N.C. Gen. Stat.

§§ 95-260 to -271. The complaint’s allegations focused on protests near DSS’s office

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and an employee’s house, as well as social media posts and text messages sent to

Petitioner’s employees by Operation Stop CPS advocates.

The trial court granted Petitioner’s motion for a temporary ex parte no-contact

order and, on 24 August 2022 conducted a hearing on whether to make the no-contact

order permanent. The trial court heard from multiple witnesses whom Respondent

cross-examined. After the hearing, the trial court found that Respondent’s actions

constituted harassment and issued a permanent no-contact order. In this order, the

trial court documented the following findings of fact:

• Respondent and her followers have regularly appeared and
protested on E[ast] Main [and] Queen St[reet] at DSS
offices[;]
• Respondent and her followers have appeared at the
personal residence of [the Durham DSS Director] and
harassed and intimidated [him;]
• [A named social worker] received no less than 300 text
messages [on] July 27—28 [2022] from 7:43 PM—2 AM
complaining of her handling of DSS cases[;]
• [The Durham DSS Director] and DSS employees are
fearful[; and]
• All other facts allege[d] in [the] petition are incorporated
herein[.]

As a conclusion of law, the trial court held that Respondent committed

“unlawful conduct” under N.C. Gen. Stat. § 95-264 (2023), but would still “be allowed

to peacefully protest.” The no-contact order also directed Respondent to:

• [N]ot visit, assault, molest, or otherwise interfere with the
employer or the employer’s employee at the employer’s
workplace or otherwise interfere with the employer’s
operations[;]

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• [C]ease stalking the employer’s employee at the employer’s
workplace[;]
• [C]ease harassment of the employer or the employer’s
employee at the employer’s workplace[;]
• [N]ot abuse or injure the employer, including employer’s
property, or the employer’s employee at the employer’s
workplace[;]
• [N]ot contact by telephone, written communication, or
electronic means the employer or the employer’s employee
at the employer’s workplace.

The no-contact order further decreed that “Respondent and her followers”

must:

• [B]e allowed to peacefully protest[;]
• [R]emain no less than [twenty-five] feet from the employee
entrance and the main entrance of DSS while protesting[;]
• [N]ot use any voice amplification devices[;]
• [N]ot yell or chant when minor children are leaving the
building when they appear to be exercising DSS supervised
visitation.

Following its entry, Respondent timely appealed the no-contact order.

II. Jurisdiction

This Court has jurisdiction to consider Respondent’s appeal of the trial court’s

no-contact order because it is a “final judgment of a district court in a civil action.”

N.C. Gen. Stat. § 7A-27(b)(2) (2023).

III. Analysis

Although Respondent timely objected to Petitioner’s standing at trial, she

abandoned the issue with this Court because she raised it only in her reply brief.

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McLean v. Spaulding, 273 N.C. App. 434, 441, 849 S.E.2d 73, 79 (2020) (citing N.C.

R. App. P. 28(b)(6)). Further, because Respondent did not “present to the trial court

a timely request, objection, or motion” that clearly and specifically “state[d] the

grounds for the ruling [she] desired the court to make,” she also abandons her right-

to-petition claim. N.C. R. App. P. 10(a)(1). Thus, Respondent presents four preserved

issues on appeal:

(1) Whether the statutory meaning of “harassment . . . directed to a specific
person” under N.C. Gen. Stat. §§ 14-377.3A(b)(2) (2023) and 95-260(3)(b)
(2023) includes these repeated text messages to an employee and social
media posts about Petitioner;
(2) Whether a no-contact order in response to Respondent’s “harassment”
requires an express finding of fact that she acted “with the intent to place
the employee in reasonable fear” of their safety under N.C. Gen. Stat. § 95-
260(3)(b);
(3) Whether N.C. Gen. Stat. § 95-264 grants a trial court authority to enjoin
non-parties; and
(4) Whether the no-contact order’s prohibition of noise-amplification devices,
protesting within twenty-five feet of DSS’s office, or yelling violates
Respondent’s freedom of speech under the United States and North
Carolina Constitutions.

This Court reviews a trial court’s record for “competent evidence that supports

the trial court’s findings of fact” and the propriety of its “conclusions of law . . . in

light of such facts.” DiPrima v. Vann, 277 N.C. App. 438, 442, 860 S.E.2d 290, 293

(2021). Those conclusions of law are reviewed de novo. Id.

A. The WVPA’s Statutory Meaning

First, Respondent argues that the trial court’s no-contact order violates the

statutory requirements of the WVPA’s own language because the text messages and

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social media posts do not meet the Act’s statutory definition of “harassing.” See N.C.

Gen. Stat. § 95-260 (2023) (incorporating by reference the definition of “harassment”

found in N.C. Gen. Stat. § 14-277.3A(b)(2) (2023)); see also Ramsey v. Harman, 191

N.C. App. 146, 150, 661 S.E.2d 924, 927 (2008). A trial court may issue a civil no-

contact order upon a finding that an “employee has suffered unlawful conduct

committed by” a respondent. N.C. Gen. Stat. § 95-264(a). In addition to several

statutory elements not at issue here, this “unlawful conduct” includes a catch-all

element of “otherwise harassing [conduct], as defined in [N.C. Gen. Stat. §] 14-

277.3A. . . .” Id. § 95-260(3)(b).

In this context, civil harassment constitutes five relevant elements: (1)

knowing conduct (2) directed at (3) a specific person (4) that torments, terrorizes, or

terrifies, and (5) serves no legitimate purpose. Id. § 14-277.3A(b)(2). Absent a

controlling statutory definition, this Court otherwise interprets statutory text

according to its ordinary meaning “understood at the time of the law’s enactment at

issue.” Birchard v. Blue Cross & Blue Shield of N.C., Inc., 283 N.C. App. 329, 333,

873 S.E.2d 635, 638 (2022) (citation omitted). Respondent does not address the fourth

element’s meaning on appeal, nor do we. Contrary to Respondent’s argument, for the

reasons below, we hold that the text messages and social media posts meet the Act’s

statutory definition of “harassment.”

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1. Knowledge & Specificity

“Knowing conduct” and “specific person” are statutorily undefined but

reasonably ascertainable in this context. N.C. Gen. Stat. § 14-277.3A(b)(2).

“Knowing” describes the required mens rea for civil harassment here. See Knowing,

Black’s Law Dictionary (12th ed. 2024) (defining as a “[d]eliberate” or “conscious”

action). Respondent acknowledged that she sought to engage in community advocacy

by “protest[ing] the kidnapping of children of Durham County.” Respondent at least

knowingly intended to advocate for certain causes and deliberately acted in

furtherance of her objective by taking those actions which Petitioner sought to have

enjoined.

“Specific person” similarly refers to Petitioner and its employees. In any event,

the order listed two specific employees. Most of the texts and social media posts in

the record did explicitly relate to or involve particular named DSS employees—the

Durham DSS Director and a specific social worker named in the no-contact order.

See Specific, Black’s Law Dictionary (12th ed. 2024) (defining “specific” as “[o]f,

relating to, or designating a particular or defined thing.”). Whether Respondent’s

intentional advocacy and the specific people involved rose to sanctionable harassment

is a separate question for the factfinder to determine. Duke v. Xylem, Inc., 284 N.C.

App. 282, 286, 876 S.E.2d 761, 764 (2022) (“It is a long-standing principle of appellate

law that appellate courts ‘cannot find facts.’”). Thus, we hold that Respondent’s

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conduct here accords with the ordinary meaning of the “knowing conduct” and

“specific person” elements of N.C. Gen. Stat. § 14-277.3A(b)(2).

2. Direction

Although the term “directed at” also is statutorily undefined, our case law

indicates that “directed at” or “directed to” involves an action personally undertaken

by one person in relation to another. In State v. Wooten, 206 N.C. App. 494, 498, 696

S.E.2d 570, 574 (2010), this Court upheld a stalking conviction in part because the

defendant included personalized mailing and telephone information on his harassing

faxes to identify the victim as their “directed” recipient. This Court upheld another

stalking conviction on similar grounds in State v. Van Pelt, 206 N.C. App. 751, 754–

55, 698 S.E.2d 504, 506 (2010), when it affirmed the trial court’s finding that the

defendant “directed” repeated messages and notes by specifically identifying the

victim to his employees as the intended recipient.

The passive voice used in § 14-277.3A(b)(2)’s text,1 however, allows for another

equally reasonable interpretation: whether a respondent can “direct at” a victim the

harassing conduct of a third party. Both parties frame their arguments around

whether Respondent directed third parties’ texts and social media posts at those

employees. A statute with multiple reasonable interpretations—such as subsection

1 See generally Bryan A. Garner with Jeff Newman & Tiger Jackson, The Redbook: A Manual

on Legal Style § 29.3(b), at 605 (5th ed. 2023) (“Omitting [an implied subject from a statutory
sentence] leads to . . . the truncated passive—often the source of inexplicit ambiguity in
governmental prescriptions.”).

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(b)(2) here—is subject to judicial construction. Visible Props., LLC v. Vill. of

Clemmons, 284 N.C. App. 743, 754, 876 S.E.2d 804, 813 (2022). Although we have

not yet addressed the plain meaning of this specific statutory phrase, reading the

proscription in its grammatically logical orientation allows for a straightforward

analysis.

The WVPA sanctions unlawful conduct committed by the respondent defined

for our purposes as a willful act of harassing conduct. N.C. Gen. Stat. §§ 95-260(3)(b),

-264(a). The incorporated § 14-277.3A provision defines “harassment” as “[k]nowing

conduct . . . directed at a specific person that torments, terrorizes, or terrifies that

person and serves no legitimate purpose.” Id. § 14-277.3A(b)(2). That said, all but

one legal definition of “direct” as a verb that we have found expressly contemplate

one person orienting or otherwise influencing another person’s actions towards a

specific outcome. See Direct, Black’s Law Dictionary (12th ed. 2024) (“vb. (14c) 1. To

aim (something or someone). 2. To cause (something or someone) to move on a

particular course. 3. To guide (something or someone); to govern. 4. To instruct

(someone) with authority. 5. To address (something or someone).”) (italicized

emphases added). Thus, this Court holds, as a question of law, that the ordinary

meaning of Paragraph (2)’s “direct at” element also implicates Respondent’s direction

of third parties towards a targeted employee.

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3. Legitimacy

N.C. Gen. Stat. § 95-260 sheds light on § 14-277.3A(b)(2)’s meaning of

“legitimate” with its own element of “legal purpose.” N.C. Gen. Stat. § 95-260. Our

precedents discussing this element inform our understanding here. In St. John v.

Brantley, 217 N.C. App. 558, 563, 720 S.E.2d 754, 758 (2011) (citing § 14-

277.3A(b)(2)), this Court upheld the trial court’s finding that the defendant’s actions

to discourage the plaintiff from testifying in a pending court case were for a “criminal

purpose” and “without any legitimate purpose.” In Keenan v. Keenan, 285 N.C. App.

133, 140, 877 S.E.2d 97, 103 (2022) (citing § 14-277.3A(b)(2)), this Court also upheld

the trial court’s finding that the defendant ex-husband’s single instance of “passive-

aggressive” trespass to mow his ex-wife’s lawn “did not serve a legitimate purpose”

and thus constituted civil harassment. Since the trial court found Respondent

“intimidated” the Durham DSS Director, case law supports its conclusion that this is

not a “legitimate purpose.” Numerous text messages sent within a short timeframe

could also be considered for an illegitimate purpose. Yet, we must still review the

sufficiency of the underlying findings of fact.

B. No-Contact Order

Second, Respondent argues that the trial court erred by: (1) not expressly

finding that Petitioner had “suffered unlawful conduct committed by” Respondent;

and (2) purporting to enjoin her “followers” without constitutional or jurisdictional

authority. N.C. Gen. Stat. § 95-264(a). We review a trial court’s findings of fact only

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to determine whether they competently support the conclusions of law undergirding

the judgment. See DiPrima, 277 N.C. App. at 442, 860 S.E.2d at 293.

1. Findings of Fact

When acting as the sole factfinder, a trial court must state the specific findings

of fact on which it bases its conclusions of law. See N.C. R. Civ. P. 52(a)(1). A trial

court must expressly document this specific intent, not merely imply it for this Court

to infer. See St. John, 217 N.C. App. at 562, 720 S.E.2d at 757 (“[A] civil no-contact

order requires findings of fact that show . . . the defendant’s harassment was

accompanied by . . . specific intent.” (quotation omitted)); see also DiPrima, 277 N.C.

App. at 443, 860 S.E.2d 294 (Rejecting the argument “that such a finding can be

inferred from the trial court’s other findings” because “our holdings in Ramsey and

St. John [make clear] that such a finding must be specifically made, not inferred.”).

In Ramsey, 191 N.C. App. 146, 661 S.E.2d 924, this Court interpreted near-

identical statutory language and schema, N.C. Gen. Stat. §§ 50C-1 to -11 (2007).2 The

2 North Carolina’s jurisprudence on civil no-contact orders focuses on Chapter 50C of our

General Statutes, which parallels the WVPA’s statutory framework. See Act of 17 August 2004, ch.
50C, 2003 N.C. Sess. Laws 2004-194 (codified at N.C. Gen. Stat. §§ 50C-1 to -11),
https://www.ncleg.gov/enactedle gislation/sessionlaws/pdf/2003-2004/sl2004-194.pdf. See generally
DiPrima v. Vann, 277 N.C. App. 438, 860 S.E.2d 290(2021); Francis v. Brown, No. COA21-466, 872
S.E.2d 182 (N.C. App. 17 May 2022) (unpublished table decision).
For example, Chapters 50C and 95 both require “intent to place” either a person or an
employee, respectively, “in reasonable fear for the[ir] safety.” Compare N.C. Gen. Stat. § 95-260,
with id. § 50C-1(6). The General Assembly further synthesized these two protective order chapters
by incorporating the same § 14-277.3A “harassment” definition into their respective provisions. See
Act of 5 June 2009, chs. 50C, 95, secs. 6–7, 2009 N.C. Sess. Laws 2009-58 (amending N.C. Gen. Stat.
§ 50C-1(6); then amending N.C. Gen. Stat. § 95-260(3)(b)),
https://www.ncleg.gov/enactedlegislation/sessionlaws/pdf/2009-2010/sl2009-58.pdf.

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Court held that statutory “stalking” requires discrete findings of harassment as

defined in N.C. Gen. Stat. § 14-277.3(c) (2007), “accompanied by the specific intent”

to engage in one of two statutory acts. Ramsey, 191 N.C. App. at 148–49, 661 S.E.2d

at 925–26 (emphasis added) (quoting § 50C-1(6)). The analogously “unlawful

conduct” at issue here requires discrete findings of harassment, as defined in N.C.

Gen. Stat. § 14-277.3A, “without legal purpose and with the intent to place the

employee in reasonable fear for the employee’s safety.” N.C. Gen. Stat. § 95-260

(emphasis added).

Here, the trial court documented in its no-contact order Respondent’s protests

at DSS’s main office and the personal residence of an employee. It also found that

“Respondent and her followers . . . intimidated” the DSS Director. Furthermore, it

found that the named social worker received text messages numerous enough to make

the social worker and her coworkers “fearful.” But other than incorporating the facts

alleged in the petition, the trial court omitted any findings concerning the content of

the “harass[ment] and intimidat[ion].” The facts alleged in the petition may be

sufficient to support the claim; however, the trial court did not expressly document

them in its order. See DiPrima, 277 N.C. App. at 443, 860 S.E.2d at 294. Absent

those findings, we cannot review whether Respondent’s conduct served a “legitimate

purpose” or specific intent to “torment, terrorize, or terrif[y]” Petitioner’s employees—

relevant elements of the harassment statute at issue. N.C. Gen. Stat. § 14-

277.3A(b)(2). Because the trial court did not make specific findings of fact about this

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conduct, we remand this matter to the trial court with instructions to make specific

findings of fact to arrive at its conclusion of law of whether Respondent engaged in

the “unlawful conduct” of “harassment” under N.C. Gen. Stat. §§ 14-277.3A(b)(2) and

95-260(3)(b). The trial court also did not identify the source of the numerous text

messages; it merely found that the social worker received them. For this reason, we

must also remand the order for the trial court to determine who sent these messages,

if it is able to do so, thereby permitting meaningful appellate review.

2. Injunction

Respondent asserts that the no-contact order against her “followers” violates

her constitutional right to due process. Petitioner suggests that Respondent lacks

standing to raise this claim. However, both are mistaken. The trial court cannot

enforce its no-contact order against these non-parties—the “followers”—because it

failed to identify them. As discussed above, this Court can only review those

conclusions of law supported by findings of fact. Here, the trial court did not identify

any “followers” to enjoin in the order. Our courts have long voided injunctions

“affecting [the] vested rights” of non-parties who lack any identifiable relationship to

the parties or any notice of the proceedings. Buncombe Cnty. Bd. of Health v. Brown,

271 N.C. 401, 404, 156 S.E.2d 708, 710 (1967) (quoting Card v. Finch, 142 N.C. 140,

144, 54 S.E. 1009, 1010 (1906)); see Ferrell v. Doub, 160 N.C. App. 373, 378, 585 S.E.2d

456, 459 (2003). Thus, we vacate the portion of the trial court’s injunction against

Respondent’s undetermined and unnamed “followers.”

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C. Constitutional Rights

Third, Respondent argues that the no-contact order violates her State Article

One and Federal First Amendment rights to speak freely and petition the

government. See N.C. Const. art. I, §§ 12, 14; U.S. Const. amend. I, cls. 3, 6. We base

our analysis of Respondent’s rights under North Carolina’s Article I, § 14 on an

articulation of preexisting federal Free Speech Clause jurisprudence. U.S. Const.

amend. I, cl. 3.

The Free Speech Clause of our State Constitution guarantees the citizens of

North Carolina the freedom of speech as one “of the great bulwarks of liberty. . . .”

N.C. Const. art. I, § 14, cl. 1. The adjacent Responsibility Clause expresses what the

federal First Amendment only implies: that “every person shall be held responsible

for . . . abus[ing]” his or her free-speech rights.3 Id. art. I, § 14, cl. 3. These Clauses

collectively mirror their federal counterpart in jurisprudence and enforcement. See

State v. Petersilie, 334 N.C. 169, 184, 432 S.E.2d 832, 840–41 (1993). The United

States Supreme Court’s interpretations of the First Amendment do not bind this

Court in interpreting our State’s equivalent, though we weigh them heavily in doing

so. Id. Respondent’s outcomes on appeal do not substantively or materially differ

depending on her state or federal sources of constitutional free-speech protections.

3 See Hest Techs. v. State ex rel. Perdue, 366 N.C. 289, 297–98, 749 S.E.2d 429, 435 (2012)

(recognizing that “particular categories of speech [ ] receive no First Amendment protection; these
categories include ‘obscenity, defamation, fraud, incitement, and speech integral to criminal
conduct.’”) (quoting United States v. Stevens, 559 U.S. 460, 468, 130 S. Ct. 1577, 1584 (2010)).

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1. Free Speech Claim

Respondent asserts that the no-contact order violated her right to freedom of

speech under North Carolina’s Article I, § 14 because the streets and sidewalks

outside DSS’s office and its employees’ homes are “traditional public forums.” In

Petersilie, our Supreme Court adopted federal jurisprudence addressing time, place,

and manner (“TPM”) restrictions of speech on government-owned property (i.e., a

“forum”). 334 N.C. 169, 183, 432 S.E.2d 832, 840 (1993). See N.C. Council of

Churches v. State, 343 N.C. 117, 468 S.E.2d 58 (1996), aff’g per curiam, 120 N.C. App.

84, 90, 461 S.E.2d 354, 358 (1995).

Considering the complex landscape of public-forum jurisprudence and our

State courts’ careful examination of TPM restrictions to date, we must first

summarize the general principles applicable to Respondent’s claims. State v. Bishop,

368 N.C. 869, 873–74, 787 S.E.2d 814, 817–18 (2016). We review this preexisting

First Amendment approach to apply North Carolina’s Free Speech and Responsibility

Clauses to private speech in public fora.4 Analyzing the intersection of Article One–

First Amendment free-speech rights and government fora requires four inquiries, the

first three of which our Supreme Court has already applied in similar cases:

4 The Court in Petersilie expressly adopted the entire corpus of federal free-speech

jurisprudence to interpret our state Constitution’s Article I, § 14 through at least its 1993
disposition. As our current Supreme Court noted, though, “it was unclear how a court should
determine” certain threshold questions of the federal public-forum doctrine until the recent decision
in Reed v. Town of Gilbert, 576 U.S. 155, 135 S. Ct. 2218 (2016). State v. Bishop, 368 N.C. 869, 818–
19, 787 S.E.2d 814, 875–76 (2016) (citing Reed, 576 U.S. at 166, 135 S. Ct. at 2228).

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(1) Whether the restriction affects protected speech or expressive conduct, e.g.,
Hest Techs. v. State ex rel. Perdue, 366 N.C. 289, 296–97, 749 S.E.2d 429,
434–35 (2012);
(2) If so, whether the restriction is either content-based or content-neutral, e.g.,
Bishop, 368 N.C. at 874, 787 S.E.2d at 818;
(3) If content-neutral, which tier of judicial review below strict scrutiny applies
to the restriction, e.g., id.; and
(4) Which category of forum the restriction concerns.

a. Expression, Content, & Scrutiny

The first inquiry is whether the restriction affects either protected speech,

inherently expressive conduct, or non-expressive conduct. See Hest Techs, 366 N.C.

at 296–97, 749 S.E.2d at 434–35. Non-expressive conduct does not raise free-speech

concerns. However, restrictions on either of the former two activities implicate

constitutionally protected rights that require further inquiry. See id.; Bishop, 368

N.C. at 874, 787 S.E.2d at 818. Neither party contests Respondent’s facially sincere

desire to protest DSS’s alleged practices. Both parties acknowledge that the no-

contact order and its organic statutes, N.C. Gen. Stat. §§ 14-277.3A(b)(2) and 95-264,

apply to expressive conduct (i.e., Respondent’s protests). Thus, the trial court’s

effectuation of these statutes through the no-contact order implicates Respondent’s

constitutional free-speech rights as a question of law.

The second inquiry is whether the restriction is either content-based or

content-neutral. Bishop, 368 N.C. at 874, 787 S.E.2d at 818. A content-based speech

restriction prima facie discriminates against the speech’s message, ideas, or subject

matter; a content-neutral restriction does not. State v. Shackelford, 264 N.C. App.

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542, 552, 825 S.E.2d 689, 696 (2018) (citing Reed v. Town of Gilbert, 576 U.S. 155,

163, 135 S. Ct. 2218, 2226 (2015); then citing Ward v. Rock Against Racism, 491 U.S.

781, 791, 109 S. Ct. 2746, 2754 (1989); then citing Bishop, 368 N.C. at 872–75, S.E.2d

at 817–18). A court may identify this discrimination in the restrictions “plain text of

the statute, or the animating impulse behind it, or the lack of any plausible

explanation besides distaste for the subject matter or message.” Bishop, 368 N.C. at

875, 787 S.E.2d at 819. If the restriction is content-based, it is presumptively

unconstitutional and must survive strict scrutiny review. Id. at 874, 787 S.E.2d at

818. If the restriction is content-neutral, different tiers of judicial scrutiny apply

depending on the forum. Id. Because Respondent challenges the WVPA only as

applied to her, we need not consider the prima facie content-neutrality of the Act

itself.

The next inquiry is which tier of judicial scrutiny applies to the restriction and

the appropriate forum. These tiers of judicial scrutiny apply to speech regulations in

descending order of exactness. To satisfy strict scrutiny, the restriction must serve a

compelling government interest and be narrowly tailored to effectuate that interest.

Id. at 876, 787 S.E.2d at 819 (citing Reed, 576 U.S. at 163, 135 S. Ct. at 2226); Hest

Techs, 366 N.C. at 298, 749 S.E.2d at 436. To satisfy intermediate scrutiny’s free-

speech variant, the restriction must be narrowly tailored to achieve an important or

substantial government interest in a manner that allows for ample alternative

channels of communication. See Bishop, 368 N.C. at 874–75, 787 S.E.2d at 818

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(quoting Ward, 491 U.S. at 791, 109 S. Ct. at 2753); Hest Techs, 366 N.C. at 298, 749

S.E.2d at 436. This particular “regulation of the time, place, or manner of protected

speech must be narrowly tailored to serve the government’s legitimate, content-

neutral interests but [ ] it need not be the least restrictive or least intrusive means of

doing so.” Ward, 491 U.S. at 798, 109 S. Ct. at 2757. Lastly, to satisfy rational basis,

the restriction need only rationally further a legitimate state interest. Hest Techs,

366 N.C. at 298–99, 749 S.E.2d at 436. Content-neutral restrictions of traditional

and designated (collectively, “unlimited”) fora are subject to intermediate scrutiny

while limited and nonpublic fora restrictions need only have a rational basis. Id.

b. Forum Categorization

To determine which level of scrutiny applies, we must determine which of the

four forum categories the speech or expressive conduct occurred: (1) a “traditional”

public forum, (2) a “designated” public forum, (3) a “limited” public forum, or (4) a

“nonpublic” forum. Christian Legal Soc. Ch. v. Martinez, 561 U.S. 661, 679 n.11, 130

S. Ct. 2971, 2984 n.11 (2010). Our state courts have described unlimited fora as

“quintessential community venue[s], such as a public street, sidewalk, or park.” State

v. Barber, 281 N.C. App. 99, 108, 868 S.E.2d 601, 607 (2021). These opinions have

relied on federal Supreme Court precedents that describe a limited public forum as

“property that the State has opened for expressive activity by part or all of the public”

on a temporary basis, Int’l Soc. for Krishna Consc. v. Lee, 505 U.S. 672, 678, 112 S.

Ct. 2701, 2705 (1992) (cited by Council, 120 N.C. App. at 90, 461 S.E.2d at 358), and

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a nonpublic forum as property maintained for a purpose “inconsistent with . . . [or]

disrupted by expressive activity.” Cornelius v. NAACP Legal Def. & Educ. Fund, 473

U.S. 788, 804, 105 S. Ct. 3439, 3450 (1985) (cited by Barber, 281 N.C. App. at 107–

08, 868 S.E.2d at 606–07).

Here, the order’s findings provide that “Respondent . . . regularly appeared and

protested on E. Main [and] Queen St. at DSS offices and at the personal residence of

[the Durham DSS Director].” Resting on those and other findings, the order

concluded that Respondent violated the WVPA and decreed that Respondent shall be

allowed to peacefully protest no less than twenty-five feet from the DSS office

employee entrance without voice amplification devices or yelling when minor children

are leaving the building. Respondent does not challenge the prima facie

constitutionality of the statutes at issue, N.C. Gen. Stat. §§ 14-277.3A, 95-260(3)(b),

and 95-264. She instead suggests their application to her through the no-contact

order’s decrees is unconstitutional.

In its current form, the no-contact order’s findings of fact lack sufficient

precision, which creates difficulty for judicially scrutinizing forum classification. For

example, the order ambiguously points to protesting at DSS’s office at the corner of

East Main Street and Queen Street in Durham. In any event, presuming this is a

“quintessential community venue,” the restrictions imposed here pass the

appropriate level of scrutiny. Barber, 281 N.C. App. at 108, 868 S.E.2d at 607. This

is not to say that we hold the places referenced in this order are traditional public

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fora. To be certain, protesting on private property, such as a personal residence, is

not a protected right under the Federal or State Constitutions. See State v. Felmet,

302 N.C. 173, 177, 273 S.E.2d 708, 712 (1981). In this case, we merely employ the

most stringent applicable test—intermediate scrutiny—to evaluate whether the

restrictions imposed by the trial court pass constitutional muster. See Bishop, 368

N.C. at 874–75, 787 S.E.2d at 818.

The plain text of the no-contact order places limitations on Respondent’s

conduct without consideration of the content. Id. at 875, 787 S.E.2d at 819. Since

the restrictions are content-neutral, they are permissible regulations of the time,

place, and manner of expression, so long as they are narrowly tailored to serve a

significant government interest and leave ample alternative channels of

communication open. See Ward, 491 U.S. at 791, 109 S. Ct. at 2753; see also Bishop,

368 N.C. at 874–75, 787 S.E.2d at 818. Protecting employee safety and preventing

psychological harm to minor children entering or leaving the building serve a

significant government interest. See Bishop, 368 N.C. at 877, 787 S.E.2d at 819

(holding protecting children from physical and psychological harm is a compelling

interest). The order is narrowly tailored because its restrictions promote this

significant government interest and would be achieved less effectively absent the

restrictions. See Ward, 491 U.S. at 796–99, 109 S. Ct. at 2758 (enumerating the

standard for narrow tailoring and addressing limitations such as sound-

amplification); see also Burson v. Freeman, 504 U.S. 191, 209, 112 S. Ct. 1846, 1857

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(1992) (holding that, even under strict scrutiny, a 100-foot boundary may be “perfectly

tailored” to achieve the government’s interest). Finally, the no-contact order leaves

open ample alternative channels of communication, as it specifies that Respondent

may still peacefully protest subject to those narrow limitations. Accordingly, this

Court holds that the no-contact order at least satisfies intermediate scrutiny and does

not violate Respondent’s free speech rights under the Federal or State Constitutions.

2. Redress of Grievances

Respondent asserts that the no-contact order violated her right to petition DSS

under the state Application Clause and federal Petition Clause. However, Petitioner

correctly points out that Respondent preserved her free-speech claim for appeal but

not her right-to-petition claim. See N.C. Const. art. I, § 12, cl. 3 (Application Clause);

cf. U.S. Const. amend. I, cl. 6 (Petition Clause). To properly preserve an issue for

review, Respondent must “present[ ] to the trial court a timely request, objection, or

motion” that clearly states “the specific grounds for the ruling the party desired the

court to make.” N.C. R. App. P. 10(a)(1).

Here, Respondent objected at trial only to “freedom of speech on [her] social

media” in response to Petitioner’s motion to enter certain photographs into evidence.

Respondent did not raise otherwise valid right-to-petition claims at any point during

the trial or as part of an expressed objection. Article One and First Amendment rights

to free speech may very well be “closely intertwined with the right to protest and

petition the government.” Nonetheless, because Respondent did not raise a request,

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objection, or motion regarding the state Application Clause or federal Petition Clause

at any point during the trial, this Court holds she did not preserve any constitutional

right-to-petition claim for appeal.

IV. Conclusion

For the reasons above, we vacate the trial court’s civil no-contact order and

remand it to the trial court for further proceedings not inconsistent with this opinion.

VACATED AND REMANDED.

Judges TYSON and MURPHY concur.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10569557. Public record. Not legal advice.