stalking statute content based because determination that defendant knew or should have known statements would cause a reasonable person to suffer emotional distress cannot be made without reference to content
How later courts described this case
- stalking statute content based because determination that defendant knew or should have known statements would cause a reasonable person to suffer emotional distress cannot be made without reference to content
- mentioning that “true threats” are one of the recognized “unprotected” categories of speech
- speech integral to criminal conduct exception was inapplicable because ‘‘speech itself was the crime’’
Written by the judges who cited it.
The opinion
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-273
Filed: 19 March 2019
Mecklenburg County, Nos. 16 CRS 10028-30, 34
STATE OF NORTH CAROLINA
v.
BRADY LORENZO SHACKELFORD
Appeal by defendant from judgment entered 18 August 2017 by Judge Yvonne
Mims Evans in Mecklenburg County Superior Court. Heard in the Court of Appeals
18 October 2018.
Attorney General Joshua H. Stein, by Solicitor General Matthew W. Sawchak
and Assistant Solicitor General Kenzie M. Rakes, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender James R.
Grant, for defendant-appellant.
DAVIS, Judge.
In this appeal, we address the question of whether a defendant’s criminal
prosecution for violations of North Carolina’s stalking statute infringed upon his
constitutional right to free speech. Brady Lorenzo Shackelford (“Defendant”) was
convicted of four counts of felony stalking based primarily upon the content of posts
made by him on his Google Plus account. Because we conclude that the application
of the statute to Defendant’s posts amounts to a violation of his right to free speech
under both the First Amendment to the United States Constitution and Article 1,
Section 14 of the North Carolina Constitution, we vacate his convictions.
STATE V. SHACKELFORD
Murphy, J., concurring
Factual and Procedural Background
The State presented evidence at trial tending to establish the following facts:
Defendant met “Mary”1 on 3 April 2015 at a church in Charlotte, North Carolina prior
to the start of a Good Friday worship service. Mary was employed in the church’s
communications department. The two of them were seated at the same table and
briefly made small talk in a group setting before separating at the beginning of the
service. Upon leaving church that day, Mary did not give any further thought to her
encounter with Defendant.
On 22 April 2015, Mary received an email from Defendant on her work email
account that referenced their 3 April meeting and asked “for help with a company
communications plan.” Mary replied to his email later that day, informing him that
she would be happy to assist him and suggesting a time for them to meet. Defendant
responded shortly thereafter, agreeing to meet Mary on the date she had suggested.
Later that same night, Defendant sent another email to Mary “to give [her]
some information about [his] business[.]” In the email, Defendant detailed his plan
to create a new business based in the British Virgin Islands. In the final paragraph
of his email, Defendant wrote that he would pay Mary “100K out of the convertible
note proceeds AND take [her] out to dinner at any restaurant in Charlotte.”
1A pseudonym is used throughout this opinion to protect the identity of the subject of
Defendant’s posts.
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STATE V. SHACKELFORD
Murphy, J., concurring
Defendant’s email “set off a lot of red flags” for Mary. On 27 April 2015 she
emailed Defendant to “cancel[ ] the meeting, thinking that his intentions were not
really professional, and informed [her] boss” about the exchange. Later that day and
again on 5 May 2015, Defendant emailed Mary in an attempt to reschedule their
meeting. On 5 May 2015, Mary replied with links to online resources and wrote: “I
won’t be able to meet. If you have further questions, you can contact my boss[.]”
On 19 May 2015, Defendant mailed a five-page handwritten letter to Mary’s
work address. At trial, Mary testified as follows with regard to this letter:
The gist of it was that when [Defendant] first saw me at
the Good Friday service he thought he had found his soul
mate, and that the feelings he felt were so intense he
couldn’t talk to me. And then he goes on to say that he used
the communications plan to talk to me, to ask me out,
rather than for professional reasons[.]
Defendant ended the letter by writing that he was “highly attracted” to Mary
and asking her to go on a date with him. The following day, Mary gave the letter to
her work supervisors and asked them to intervene on her behalf, and they agreed to
do so. She did not respond to Defendant’s letter.
On 26 May 2015, Defendant sent Mary a second handwritten letter, which was
seven pages long and mailed to her home address. At trial, Mary provided a summary
of the second letter:
He starts by apologizing for sending this to me without me
giving him my address. He says he found it on a website.
And he also says that he would not harass or stalk me, and
3
STATE V. SHACKELFORD
Murphy, J., concurring
that if I felt uncomfortable to notify him and he would cease
communication. Then he goes on to talk about some of his
personal history, and the last line says that I need to go on
a date with him or tell him to leave me alone.
Mary showed Defendant’s letter to her supervisors, who once again told her that they
would handle the situation.
On 9 June 2015, Reverend Bill Roth, the Minister of Pastoral Care at the
church, spoke to Defendant over the phone about his communications with Mary.
During this phone call, Reverend Roth told Defendant “to stop making any contact
[with Mary] and [that] there could be legal actions if he did, and that the contacts
were unwanted.” Following this conversation, Defendant did not send Mary any
further emails or letters.
In June of 2015, Mary logged into an account she had created on the social
media service Google Plus. Upon doing so, she discovered that Defendant had
“followed” her account sometime in late April of 2015 and had made four separate
posts on his own Google Plus account in early June that referred to her by name. The
posts on Defendant’s Google Plus account were not specifically directed to Mary but
were shared publicly on his account where any user of the service could read them.
The first post, dated 2 June 2015, stated that “God chose [Mary]” to be
Defendant’s “soul mate.” In the other three posts, Defendant wrote, among other
things, that he “freely chose [Mary] as [his] wife” and wanted God to “please make
[Mary]” his wife. After viewing these posts, Mary immediately blocked Defendant’s
4
STATE V. SHACKELFORD
Murphy, J., concurring
account. Shortly thereafter, she deleted her own Google Plus account. Mary
continued, however, to monitor Defendant’s publicly shared posts by checking his
Google Plus page “[a]t least once a week.”
Following his 9 June 2015 phone call with Reverend Roth, Defendant
continued to post about Mary. None of his posts after that date referenced Mary by
name, although one used her initials and another referred to her by a shortened
version of her first name.
On 19 June 2015, Defendant wrote the following post on his Google Plus
account:
There is a woman from my church that is turning me bat
crazy. She is the first thing I see when I wake up in the
morning and the last thing I see before I lay down at night.
I strongly believe that she is an angel in disguise, that she
is the girl that God sent down from heaven for me. I
strongly believe that she is my soul mate, that she is my
destiny. My heart aches for her.
He posted as follows on 28 June 2015:
I’m feeling depressed. There’s a woman at my church that
I want really, really bad, but she doesn’t want me. I’ve
prayed to God asking him to relieve this pain in my heart
by allowing me to view just a small glimpse of her angelic
face while in church, but God won’t even give me that.
On 19 July 2015, Defendant wrote the following post:
I’ve changed my relationship status because too many
single & looking women are adding me to their circles.
There is only one woman that I want, and her initials are
[Mary’s initials]. Even though we aren’t dating yet, you
5
STATE V. SHACKELFORD
Murphy, J., concurring
might as well mark me down as being in a relationship
because I am not interested in other women.
He also posted a message on 2 August 2015 stating that “I believe the woman
who introduced me to my soul mate at my church’s Good Friday service is jealous and
envious of my love for my soul mate and would rather me be with her instead of my
soul mate.”
On 13 August 2015, a box of cupcakes was delivered to Mary’s office at her
work. Attached to the box was a typed, unsigned note that read: “[Mary], I never
properly thanked you for the help you gave me regarding my company’s
communication plan, so, with these cupcakes, please accept my thanks.”
Upon receiving the cupcakes, Mary filed a police report with Detective Stephen
Todd, an off-duty Charlotte-Mecklenburg Police Department officer who worked at
the church, because she “felt like she was being stalked.” Based upon Mary’s report,
Detective Todd applied for an arrest warrant against Defendant on a charge of
misdemeanor stalking. Defendant was arrested on 14 August 2015 and subsequently
released on bail.
The same day that he was arrested, Defendant posted the following message
on his Google Plus account:
A woman I was interested in really, really bad has let it be
known in no uncertain terms that she is not interested in
me. Therefore, with a much heavy heart, I announce that
I am officially single. :(
6
STATE V. SHACKELFORD
Murphy, J., concurring
The pain hurts because I dreamt about this woman and
believed that she was my soul mate. How could God be so
wrong???
On 16 August 2015, Defendant posted another message:
I study all religions, and I have been searching them all for
the past day trying to find something, some quote, that
would console me in my time of heartbreak. I just read
something by Buddha that, instead of consoling me,
actually made me angry. He said, “In the end, only three
things matter: how much you loved, how gently you lived,
and how gracefully you let go of things not meant for you.”
My question for Buddha is this: How do you know when
something is not meant for you if you give up at the first
sign of difficulty? Sometimes, God places difficulties in our
lives because he wants us to be persistent in the face of
those difficulties. For example, if a boy really wanted a
girl, and the girl turned him down the first time he asked
her out on a date, should he take Buddha’s advice and
gracefully let go of something not meant for him or should
he continue courting the girl with the hope that she will
one day say yes? If every guy let go of the girl who turned
him down the first time, then there would be lots of
marriages that never took place because he wasn’t
persistent. Had he been persistent, his persistence would
have won her over by proving to her just how much he loved
her. . . .
Later that same day, Defendant posted as follows on his Google Plus account:
I have courted three Venus in Scorpios over the years, so I
decided earlier this summer to learn everything that I
could about Scorpios and Venus in Scorpios. I was reading
this website about Scorpios this evening when I read a
sentence that made me break out laughing so hard from
the truth that I nearly died. The author was talking about
their obsessiveness and stated, “Don’t run away (you’ll only
be stalked).” I LMAO because I saw the behavior in all
7
STATE V. SHACKELFORD
Murphy, J., concurring
three women. Moreover, the Scorpio Ascendant in me
completely understood where they were coming from.
On 21 August 2015, Mary filed a petition for a no-contact order against
Defendant in Mecklenburg County District Court. On 1 September 2015, the
Honorable Becky Tin issued an order prohibiting Defendant from contacting Mary or
“posting any information about [her] on social media.”
Later that month, Defendant authored the following post on his Google Plus
account on the same date that Mary attended a Carolina Panthers football game:
“Who is your favorite Carolina Panthers cheerleader? Mine is . . . I’m not telling,
least [sic] I upset my Venus in Scorpio future wife. . . .” On 28 September 2015,
Defendant posted: “OK, I’ve teased my Venus in Scorpio long enough. My favorite
Carolina Panthers cheerleader is Emily. If she shows up missing, [shortened form of
Mary’s name], I’ll know who to blame.”
Several weeks later, following a heavy rainstorm in South Carolina – where
Mary’s family lives – Defendant posted: “South Carolina got pummeled with rain. I
pray my future wife’s family is OK.” On 4 October 2015, Defendant posed the
following question on his account: “If you really loved someone and wanted to be with
them forever, would you fly down to the Caribbean and secretly elope with them on a
deserted island?”
In an undated Google Plus post that was introduced as evidence at his trial,
Defendant wrote, in relevant part, as follows:
8
STATE V. SHACKELFORD
Murphy, J., concurring
I would love to learn more about the dynamic between me
and my future wife, but I don’t know her personality type.
I do know that she is either an INFJ or an INFP because of
a pin on her Pinterest board. Unfortunately, her pin is
confusing because she says that she is an INFP while the
image she pinned is that of an INFJ. I guess I will just
have to study both of them.
On 24 November 2015, Defendant sent an email to a close friend of Mary’s.
The email began as follows:
I know that you are best friends with [Mary]. In fact, I
knew that you were best friends with Mary before you even
added me to your circles on Google+. My question for you
is this: You were present in the courtroom when [Mary]
obtained a protective order against me, so why would you
even add me to your circles if I am supposedly stalking
[Mary]?
Later in the email, Defendant wrote that Mary had a “moral responsibility to
tell the full truth as to why she really charged me when we show up in court” and
that the friend should “encourage [Mary] to tell the truth when we show up in court[.]”
On Monday, 14 December 2015, Defendant posted the following on his Google
Plus account:
I’m going to send a personal email on Friday using my
corporate email account, which doesn’t have tracking
software, instead of my Gmail account, which does have
tracking software, because the final recipient knows that I
have tracking software on my Gmail account, and I want
her to share the email with as many people as possible
without fear of me knowing who she is forwarding the
email to.
9
STATE V. SHACKELFORD
Murphy, J., concurring
Two days later, he wrote: “I am so eager to marry my future wife that I would
rather elope with her now than marry her in our church seven months from now.”
On Friday, 18 December 2015, Defendant sent another email to Mary’s friend.
In this email, he detailed his plans to issue a $500 million note as part of a viral
marketing campaign that would ultimately result in him taking a polygraph test on
CNN to prove that he had “talked to God over 20 times and seen his face 5 times[.]”
According to Defendant, his televised polygraph test would provide Mary with an
opportunity to save face and “tell the judge that I am obviously a righteous man and
was in no way a threat towards her.” Three days after sending this email, Defendant
posted the following on his Google Plus account: “I just realized that I forgot my wife’s
birthday last week. I’m sorry, Babe[.]”
Mary’s friend forwarded both of the emails she had received from Defendant
to Detective Todd. Based on these emails along with Defendant’s Google Plus posts,
Detective Todd obtained an arrest warrant against Defendant on 24 December 2015
for felony stalking. Defendant was subsequently indicted by a grand jury on eight
additional counts of felony stalking on 4 April 2016. On 4 August 2017, Defendant
filed a motion to dismiss all charges against him on the ground that the Google Plus
posts giving rise to his charges were protected under the First Amendment.
Defendant’s jury trial began on 15 August 2017 in Mecklenburg County
Superior Court before the Honorable Yvonne Mims Evans. Prior to the beginning of
10
STATE V. SHACKELFORD
Murphy, J., concurring
trial, the court denied the State’s motion to amend the date on one of Defendant’s
indictments, and the State dismissed that charge. At the close of the State’s evidence,
the trial court granted Defendant’s motion to dismiss the four stalking charges
premised upon violations of the 1 September 2015 no-contact order. The court stated
that it was doing so based upon its concern that the language in the no-contact order
prohibiting Defendant from posting about Mary on social media “may be
unconstitutional.”
On 18 August 2017, Defendant was convicted of each of the four remaining
stalking offenses that were submitted to the jury. All of these convictions were based
upon conduct that occurred after his 9 June 2015 phone call with Reverend Roth
during which he was directed to cease his attempts to communicate directly with
Mary. The trial court consolidated Defendant’s convictions in 16 CRS 10028 and 16
CRS 10029 and sentenced him to a term of 17 to 30 months imprisonment. The court
also imposed a consecutive sentence of 15 to 27 months imprisonment for his
conviction in 16 CRS 10030. With regard to Defendant’s conviction in 16 CRS 10034,
the court sentenced Defendant to a term of 15 to 27 months imprisonment, suspended
the sentence, and placed him on 36 months of supervised probation. Defendant gave
notice of appeal in open court.
Analysis
11
STATE V. SHACKELFORD
Murphy, J., concurring
On appeal, Defendant argues that the trial court erred by denying his motion
to dismiss the four stalking charges for which he was ultimately convicted. He
contends that because all of these charges were based — either in whole or in part —
upon the content of his Google Plus posts, he could not constitutionally be convicted
of stalking due to the resulting infringement of his right to free speech under the First
Amendment to the United States Constitution and Article 1, Section 14 of the North
Carolina Constitution. As such, he is asserting an as-applied challenge to North
Carolina’s stalking statute, N.C. Gen. Stat. § 14-277.3A.
I. As-Applied Challenge to N.C. Gen. Stat. § 14-277.3A
A. As-Applied Challenges Generally
With regard to the distinction between facial and as-applied constitutional
challenges, this Court has stated the following:
[T]here is a difference between a challenge to the facial
validity of [a statute] as opposed to a challenge to the
[statute] as applied to a specific party. The basic
distinction is that an as-applied challenge represents a
plaintiff’s protest against how a statute was applied in the
particular context in which plaintiff acted or proposed to
act, while a facial challenge represents a plaintiff’s
contention that a statute is incapable of constitutional
application in any context. . . . Only in as-applied
challenges are facts surrounding the plaintiff’s particular
circumstances relevant.
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STATE V. SHACKELFORD
Murphy, J., concurring
Town of Beech Mountain v. Genesis Wildlife Sanctuary, Inc., 247 N.C. App. 444, 460,
786 S.E.2d 335, 347 (2016) (internal citations, quotation marks, and brackets
omitted), aff’d per curiam, 369 N.C. 722, 799 S.E.2d 611 (2017).
Here, Defendant’s constitutional challenge is strictly an as-applied one. Thus,
this case does not require us to consider the facial validity of N.C. Gen. Stat. § 14-
277.3A.
“The standard of review for alleged violations of constitutional rights is de
novo.” State v. Roberts, 237 N.C. App. 551, 556, 767 S.E.2d 543, 548 (2014) (citation
and quotation marks omitted), disc. review denied, 368 N.C. 258, 771 S.E.2d 324
(2015). Under the de novo standard, this Court “considers the matter anew and freely
substitutes its own judgment for that of the lower tribunal.” State v. Williams, 362
N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008) (citation and quotation marks omitted).
B. Overview of N.C. Gen. Stat. § 14-277.3A
N.C. Gen. Stat. § 14-277.3A provides, in pertinent part, as follows:
(c) Offense. — A defendant is guilty of stalking if the
defendant willfully on more than one occasion harasses
another person without legal purpose or willfully engages
in a course of conduct directed at a specific person without
legal purpose and the defendant knows or should know
that the harassment or the course of conduct would cause
a reasonable person to do any of the following:
....
(2) Suffer substantial emotional distress by placing that
person in fear of death, bodily injury, or continued
13
STATE V. SHACKELFORD
Murphy, J., concurring
harassment.
N.C. Gen. Stat. § 14-277.3A (2017).
“Course of conduct” is defined in the statute as “[t]wo or more acts, including,
but not limited to, acts in which the stalker directly, indirectly, or through third
parties, by any action, method, device, or means . . . communicates to or about a
person[.]” Id. N.C. Gen. Stat. § 14-277.3A defines “harassment” as “[k]nowing
conduct, including written or printed communication or transmission . . . and
electronic mail messages or other computerized or electronic transmissions directed
at a specific person that torments, terrorizes, or terrifies that person and that serves
no legitimate purpose.” Id. In this appeal, the State argues that Defendant’s
convictions were proper based on the theory that he engaged in an illegal “course of
conduct” directed at Mary as that phrase is statutorily defined.
C. First Amendment Principles
“The First Amendment, applicable to the States through the Fourteenth
Amendment, prohibits the enactment of laws abridging the freedom of speech.” Reed
v. Town of Gilbert, Ariz., __ U.S. __, __, 192 L. Ed. 2d 236, 245 (2015) (citation and
quotation marks omitted). Article 1, Section 14 of the North Carolina Constitution
provides that “[f]reedom of speech and of the press are two of the great bulwarks of
liberty and therefore shall never be restrained, but every person shall be held
responsible for their abuse.” N.C. Const. art. I, § 14. Our appellate courts have held
14
STATE V. SHACKELFORD
Murphy, J., concurring
that the free speech protections contained in the federal and North Carolina
constitutions are “parallel and has addressed them as if their protections were
equivalent.” State v. Petersilie, 334 N.C. 169, 184, 432 S.E.2d 832, 841 (1993) (citation
omitted).
“Posting information on the Internet — whatever the subject matter — can
constitute speech as surely as stapling flyers to bulletin boards or distributing
pamphlets to passersby — activities long protected by the First Amendment.” State
v. Bishop, 368 N.C. 869, 873, 787 S.E.2d 814, 817 (2016) (citation omitted). Indeed,
“the protections of the First Amendment extend in full not just to the Internet, but to
all new media and forms of communication that progress might make available[.]”
Id. at 874, 787 S.E.2d at 818 (internal citation omitted).
The United States Supreme Court has stated that “above all else, the First
Amendment means that government has no power to restrict expression because of
its message, its ideas, its subject matter, or its content.” Police Dept. of City of
Chicago v. Mosley, 408 U.S. 92, 95, 33 L. Ed. 2d 212, 216 (1972) (citation omitted). As
a result, “[c]ontent-based laws — those that target speech based on its communicative
content — are presumptively unconstitutional and may be justified only if the
government proves that they are narrowly tailored to serve compelling state
interests.” Reed, __ U.S. at __, 192 L. Ed. 2d. at 245 (citation omitted). Conversely,
“[g]overnment regulation of expressive activity is content neutral so long as it is
15
STATE V. SHACKELFORD
Murphy, J., concurring
justified without reference to the content of the regulated speech.” Ward v. Rock
Against Racism, 491 U.S. 781, 791, 105 L. Ed. 2d. 661, 675 (citation and quotation
marks omitted).
In Bishop, our Supreme Court recently addressed a constitutional challenge to
North Carolina’s cyberbullying statute. Bishop, 368 N.C. at 872, 787 S.E.2d at 817.
Although Bishop involved a facial — rather than an as-applied — challenge, we
nevertheless find the Supreme Court’s decision instructive in guiding our analysis in
the present case.
The provision of the cyberbullying statute being challenged in Bishop provided,
in relevant part, as follows:
(a) Except as otherwise made unlawful by this Article, it
shall be unlawful for any person to use a computer or
computer network to do any of the following:
(1) With the intent to intimidate or torment a minor:
....
d. Post or encourage others to post on the Internet
private, personal, or sexual information pertaining
to a minor.
N.C. Gen. Stat. §14-458.1(a)(1)(d) (2015).
In assessing the constitutionality of that provision, our Supreme Court first
analyzed whether the regulation implicated the First Amendment by restricting
protected speech. Bishop, 368 N.C. at 872, 787 S.E.2d at 817. After determining that
16
STATE V. SHACKELFORD
Murphy, J., concurring
the statute did, in fact, regulate protected speech because it “outlawed posting
particular subject matter, on the internet, with certain intent[,]” the Court proceeded
to its “second threshold inquiry” — whether N.C. Gen. Stat. § 14-458.1(a)(1)(d) was a
content-based or content-neutral restriction. Id. at 873, 874, 787 S.E.2d at 817, 818.
The Court explained the importance of this distinction as follows:
This central inquiry determines the level of scrutiny we
apply here. Content based speech regulations must satisfy
strict scrutiny. Such restrictions are presumptively
unconstitutional and may be justified only if the
government proves that they are narrowly tailored to serve
compelling state interests. In contrast, content neutral
measures . . . are subjected to a less demanding but still
rigorous form of intermediate scrutiny. The government
must prove that they are narrowly tailored to serve a
significant governmental interest, and that they leave open
ample alternative channels for communication of the
information.
Id. at 874-75, 787 S.E.2d at 818 (internal citations and quotation marks omitted).
The Supreme Court ultimately concluded that the cyberbullying statute was content-
based because it “defines regulated speech by its particular subject matter” in
“criminaliz[ing] some messages but not others, and makes it impossible to determine
whether the accused has committed a crime without examining the content of his
communication.” Id. at 876, 787 S.E.2d at 819 (citation, quotation marks, and
brackets omitted).
The Court then proceeded to examine whether the challenged provision of the
cyberbullying statute survived strict scrutiny. After determining that the protection
17
STATE V. SHACKELFORD
Murphy, J., concurring
of minors from online bullying represented a compelling governmental interest, it
analyzed whether N.C. Gen. Stat. § 14-458.1(a)(1)(d) “embodies the least restrictive
means of advancing the State’s compelling interest in protecting minors from this
potential harm.” Id. at 878, 787 S.E.2d at 820. The Court ultimately held that the
provision failed the strict scrutiny test and therefore violated the First Amendment,
concluding as follows:
Were we to adopt the State’s position, it could be unlawful
to post on the Internet any information relating to a
particular minor. Such an interpretation would essentially
criminalize posting any information about any specific
minor if done with the requisite intent.
. . . N.C. Gen. Stat. § 14-458.1(a)(1)(d) could criminalize
behavior that a robust contemporary society must tolerate
because of the First Amendment, even if we do not approve
of the behavior. . . .
In sum, however laudable the State’s interest in protecting
minors from the dangers of online bullying may be, North
Carolina’s cyberbullying statute creates a criminal
prohibition of alarming breadth.
Id. at 879, 787 S.E.2d at 821 (citations, quotation marks, and brackets omitted).
1. “Speech Integral to Criminal Conduct” Exception
Having reviewed the pertinent legal principles implicated by Defendant’s
arguments on appeal, we now turn our attention to Defendant’s constitutional
argument itself. Before we apply the analysis applicable to challenges brought under
the First Amendment, however, we must first address the threshold issue raised by
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STATE V. SHACKELFORD
Murphy, J., concurring
the State that Defendant’s Google Plus posts are excluded from First Amendment
protection. Specifically, the State contends that Defendant’s posts constitute “speech
that is integral to criminal conduct” — a category of speech that falls outside of the
protection provided by the First Amendment. We disagree.
Although it is well established that content-based speech restrictions are
presumptively invalid, certain categories of expression are wholly excluded from First
Amendment protection. See U.S. v. Stevens, 559 U.S. 460, 468-69, 176 L. Ed. 2d 435,
444 (2010) (listing obscenity, defamation, fraud, and “speech integral to criminal
conduct” as examples of “well-defined and narrowly limited classes of speech, the
prevention and punishment of which have never been thought to raise any
Constitutional problem” (internal citations and quotation marks omitted)). “[I]t
rarely has been suggested that the constitutional freedom for speech . . . extends its
immunity to speech or writing used as an integral part of conduct in violation of a
valid criminal statute.” New York v. Ferber, 458 U.S. 747, 761-62, 73 L. Ed. 2d 1113,
1125-26 (1982) (citation and quotation marks omitted); see id. at 758-59, 73 L. Ed. 2d
at 1124 (holding ban on distribution of child pornography “passes muster under the
First Amendment” because speech at issue was “intrinsically related to the sexual
abuse of children”).
In evaluating the State’s argument on this issue, we find the decision from the
Illinois Supreme Court in People v. Relerford, 2017 IL 121094, ¶1, 104 N.E.3d 341 to
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STATE V. SHACKELFORD
Murphy, J., concurring
be helpful.2 In Relerford, the court invalidated certain provisions of Illinois’ stalking
and cyberstalking statutes as facially violative of the First Amendment. Id. at ¶63,
104 N.E.3d at 356. The challenged provision of the stalking statute — which was
very similar to the pertinent language from N.C. Gen. Stat. § 14-277.3A — stated
that “two or more nonconsensual communications to or about a person that the
defendant knows or should know would cause a reasonable person to suffer emotional
distress constitute a course of conduct sufficient to establish the offense of stalking.”
Id. at ¶29, 104 N.E.3d at 349. In determining that the above-quoted provision was
constitutionally invalid, the Illinois court rejected the state’s argument that the
statutory provision merely regulated speech integral to criminal conduct:
In light of the fact that a course of conduct can be premised
exclusively on two communications to or about a person,
this . . . is a direct limitation on speech that does not
require any relationship — integral or otherwise — to
unlawful conduct. Under [the statute], the speech is the
criminal act.
Id. at ¶45, 104 N.E.3d at 352.
As noted above, N.C. Gen. Stat. § 14-277.3A provides, in pertinent part, as
follows:
(c) Offense. — A defendant is guilty of stalking if the
2 Although it is axiomatic that we are not bound by decisions from the appellate courts of
another state unless we are applying the law of that jurisdiction, we are permitted to consider them
as persuasive authority. See State v. Williams, 232 N.C. App. 152, 157, 754 S.E.2d 418, 422 (“While
we recognize that decisions from other jurisdictions are, of course, not binding on the courts of this
State, we are free to review such decisions for guidance.” (citation and quotation marks omitted)),
appeal dismissed and disc. review denied, 367 N.C. 784, 766 S.E.2d 846 (2014).
20
STATE V. SHACKELFORD
Murphy, J., concurring
defendant willfully on more than one occasion . . . engages
in a course of conduct directed at a specific person without
legal purpose and the defendant knows or should know
that the . . . course of conduct would cause a reasonable
person to do any of the following:
....
(2) Suffer substantial emotional distress by placing that
person in fear of death, bodily injury, or continued
harassment.
N.C. Gen. Stat. § 14-277.3A. Moreover, “[c]ourse of conduct” is defined in the statute
as “[t]wo or more acts, including, but not limited to, acts in which the stalker directly,
indirectly, or through third parties, by any action, method, device, or
means . . . communicates to or about a person[.]” N.C. Gen. Stat. § 14-277.3A(b)(1)
(emphasis added).
Thus, the pertinent statutory language at issue here is virtually identical to
the statutory provision declared to be unconstitutional in Relerford in that two or
more communications by a defendant to or about another person can constitute a
course of conduct sufficient to support a stalking conviction. Here, all four of
Defendant’s indictments were premised either entirely or in part upon social media
posts referencing Mary — posts that he wrote about Mary but did not send directly
to her (or, for that matter, to anyone else). Pursuant to the language of N.C. Gen.
Stat. § 14-277.3A, no additional conduct on his part was needed to support his
stalking convictions. Rather, his speech itself was the crime.
21
STATE V. SHACKELFORD
Murphy, J., concurring
For this reason, the First Amendment is directly implicated by Defendant’s
prosecution under N.C. Gen. Stat. § 14-277.3A. We therefore reject the State’s
argument that Defendant’s posts fall within the “speech integral to criminal conduct”
exception. See United Food & Commer. Workers Local 99 v. Bennett, 934 F. Supp. 2d
1167, 1208 (D. Ariz. 2013) (“[The statute] does not incidentally punish speech that is
integral to a criminal violation; the speech itself is the criminal violation.”).3
2. Analysis Under First Amendment
Having concluded that the First Amendment is, in fact, triggered by
Defendant’s convictions, we next proceed to analyze Defendant’s free speech
argument within the framework adopted by the United States Supreme Court. As
an initial matter, in order to determine the appropriate level of scrutiny to apply, we
must first decide whether the application of N.C. Gen. Stat. § 14-277.3A to
Defendant’s posts represented a content-based or content-neutral restriction on
speech.
Government regulation of speech is content based if a law
applies to particular speech because of the topic discussed
or the idea or message expressed. . . . Our precedents have
also recognized a separate and additional category of laws
that, though facially content neutral, will be considered
content-based regulations of speech: laws that cannot be
justified without reference to the content of the regulated
3 While threats also constitute a type of speech that does not receive First Amendment
protection, see Virginia v. Black, 538 U.S. 343, 359, 155 L. Ed. 2d 535, 552 (2003) (“[T]he First
Amendment also permits a [s]tate to ban a true threat.” (citation and quotation marks omitted)), the
State conceded at oral argument that none of Defendant’s Google Plus posts constituted threats
against Mary.
22
STATE V. SHACKELFORD
Murphy, J., concurring
speech[.]
Reed, __ U.S. at __, 192 L. Ed. 2d. at 245 (internal citations and quotation marks
omitted). Restrictions are also content-based if they are “concerned with undesirable
effects that arise from the direct impact of speech on its audience or listeners’
reactions to speech.” McCullen v. Coakley, __ U.S. __, __, 189 L. Ed. 2d 502, 517
(2014) (citation and quotation marks omitted).
Once again, we find Relerford to be helpful to our analysis of this issue. There,
the court concluded that the challenged provision of the Illinois stalking statute was
a content-based restriction because the prohibition contained in the statutory
language against “communications to or about a person that negligently would cause
a reasonable person to suffer emotional distress criminalizes certain types of speech
based on the impact that the communication has on the recipient.” Relerford, 2017
IL 121094 at ¶34, 104 N.E.3d at 351.
Under the relevant statutory language, communications
that are pleasing to the recipient due to their nature or
substance are not prohibited, but communications that the
speaker knows or should know are distressing due to their
nature or substance are prohibited. Therefore, it is clear
that the challenged statutory provision must be considered
a content-based restriction because it cannot be justified
without reference to the content of the prohibited
communications.
Id. (citation omitted). Similarly, in Bishop our Supreme Court determined that N.C.
Gen. Stat. § 14-458.1(a)(1)(d) was a content-based restriction because the language of
23
STATE V. SHACKELFORD
Murphy, J., concurring
North Carolina’s cyberbullying statute made it “impossible to determine whether the
accused has committed a crime without examining the content of his communication.”
Bishop, 368 N.C. at 876, 787 S.E.2d at 819.
In the present case, based on the text of N.C. Gen. Stat. § 14-277.3A Defendant
was subject to prosecution if he knew or should have known that his Google Plus posts
“would cause a reasonable person to . . . [s]uffer substantial emotional distress[.]”
N.C. Gen. Stat. § 14-277.3A(c)(2). Such a determination simply could not be made
without reference to the content of his posts. See Forsyth Cty. v. Nationalist
Movement, 505 U.S. 123, 134, 120 L. Ed. 2d 101, 114 (1992) (“Listeners’ reaction to
speech is not a content-neutral basis for regulation.” (citation omitted)).
Therefore, we hold that as applied to Defendant N.C. Gen. Stat. § 14-277.3A
constituted a content-based restriction on speech. As a result, our final step in the
analysis is to determine whether the application of N.C. Gen. Stat. § 14-277.3A to the
messages contained in Defendant’s social media posts satisfies strict scrutiny review.
We conclude that it does not.
In order to survive a strict scrutiny analysis, “the State must show that the
statute serves a compelling governmental interest, and that the law is narrowly
tailored to effectuate that interest.” Bishop, 368 N.C. at 876, 787 S.E.2d at 819. As
our Supreme Court has explained, “[t]he State must show not only that a challenged
content based measure addresses the identified harm, but that the enactment
24
STATE V. SHACKELFORD
Murphy, J., concurring
provides the least restrictive means of doing so. Given this exacting scrutiny, it is
perhaps unsurprising that few content based restrictions have survived this inquiry.”
Id. at 877-78, 787 S.E.2d at 820 (internal citations and quotation marks omitted).
In Bishop, the Supreme Court held that the challenged statute failed strict
scrutiny because it did not “embod[y] the least restrictive means of advancing the
State’s compelling interest in protecting minors from [cyberbullying].” Id. at 878, 787
S.E.2d at 820. As discussed above, that statute criminalized “[p]ost[ing] or
encourag[ing] others to post on the Internet private, personal, or sexual information
pertaining to a minor” with the intent “to intimidate or torment a minor.” N.C. Gen.
Stat. § 14-458.1. In concluding that the statute failed strict scrutiny, the Supreme
Court reasoned that “as to both the motive of the poster and the content of the posting,
the statute sweeps far beyond the State’s legitimate interest in protecting the
psychological health of minors.” Bishop, 368 N.C. at 878, 787 S.E.2d at 821. The
Court was particularly troubled by the scope of the statutory language prohibiting
the posting of “private, personal, or sexual information pertaining to a minor,” which
“would essentially criminalize posting any information about any specific minor if
done with the requisite intent.” Id. at 879, 787 S.E.2d at 821.
The Illinois Supreme Court invalidated the challenged provision of the stalking
statute at issue in Relerford due to similar concerns about overbreadth. In concluding
that the provision was unconstitutional, the court stated as follows:
25
STATE V. SHACKELFORD
Murphy, J., concurring
[S]ubsection (a) embraces a vast array of circumstances
that limit speech far beyond the generally understood
meaning of stalking. Indeed, the amended provision
criminalizes any number of commonplace situations in
which an individual engages in expressive activity that he
or she should know will cause another person to suffer
emotional distress. The broad sweep of subsection (a)
reaches a host of social interactions that a person would
find distressing but are clearly understood to fall within
the protections of the first amendment.
Relerford, 2017 IL 121094 at ¶52, 104 N.E.3d at 353-54.
Here, the State contends that the application of N.C. Gen. Stat. § 14-277.3A to
Defendant’s Google Plus posts is sufficient to withstand strict scrutiny because (1)
the prevention of stalking “before it escalates into more harmful or lethal criminal
behavior” is a compelling state interest; and (2) the statute is the least restrictive
means of accomplishing this goal in that it “is limited to willful or knowing conduct,
directed at a specific person, that would cause a reasonable person to suffer fear or
substantial emotional distress.” However, even assuming arguendo that the statute
serves a compelling governmental interest in preventing the escalation of stalking
into more dangerous behavior, we are not persuaded that the application of N.C. Gen.
Stat. § 14-277.3A to Defendant’s posts represented the least restrictive means of
accomplishing that goal.
Prior to Defendant’s indictments, Mary had already sought and received a no-
contact order in district court that prohibited him from approaching or contacting
her. Given the existence of a no-contact order against Defendant, strict enforcement
26
STATE V. SHACKELFORD
Murphy, J., concurring
of the terms of that order clearly represented a less restrictive means by which the
State could have pursued its interest in preventing Defendant from engaging in a
criminal act against her.4
The pertinent language of N.C. Gen. Stat. § 14-277.3A that formed the basis
for Defendant’s convictions is virtually identical to the provision in the Illinois
stalking statute struck down as overbroad in Relerford. We believe the reasoning of
the Illinois Supreme Court on this issue is both sound and equally applicable to the
present case. As in Bishop, Defendant was convicted pursuant to a “criminal
prohibition of alarming breadth” that “could criminalize behavior that a robust
contemporary society must tolerate because of the First Amendment, even if we do
not approve of the behavior.” Bishop, 368 N.C. at 879, 787 S.E.2d at 821 (citation and
quotation marks omitted). For these reasons, we hold that the application of N.C.
Gen. Stat. § 14-277.3A to Defendant’s social media posts constitutes a violation of his
First Amendment rights in that applying the statute to him under these
circumstances amounts to a content-based restriction on his speech that fails to
satisfy strict scrutiny.
II. Remedy
4 The trial court dismissed Defendant’s stalking charges premised upon his violation of the
portion of the no-contact order that prohibited him from “posting any information about [Mary] on
social media” due to constitutional concerns. However, as counsel for Defendant acknowledged at oral
argument, no similar concerns would have existed with regard to the provisions of the order requiring
Defendant to refrain from approaching or directly contacting Mary.
27
STATE V. SHACKELFORD
Murphy, J., concurring
Having determined that Defendant’s Google Plus posts could not
constitutionally form the basis for his convictions, we must separately examine the
conduct giving rise to each of his four convictions to determine the extent to which
each conviction was impermissibly premised upon his social media activity.
A. 16 CRS 10028-30
Defendant’s conviction in 16 CRS 10028 was premised entirely upon five
Google Plus posts that he made to his account between 27 September and 4 October
2015. Therefore, because the State did not rely on any other acts by him during this
time period to support this charge, we vacate the conviction.
With regard to 16 CRS 10029 and 10030, the date ranges on their respective
indictments overlap. 16 CRS 10029 includes conduct that occurred between 13
August 2015 and 16 August 2015 while 16 CRS 10030 covers the time period from 2
June 2015 to 28 August 2015. Both charges are premised upon multiple Google Plus
posts made by Defendant as well as the 13 August 2015 delivery of cupcakes to Mary’s
workplace — an act that fell within the date ranges of both indictments.
Defendant’s delivery of cupcakes to Mary — unlike his Google Plus posts —
constituted non-expressive conduct rather than speech and therefore was not
protected under the First Amendment. See id. at 872, 787 S.E.2d at 817 (“We must
first determine whether [the statute] restricts protected speech or expressive conduct,
or whether the statute affects only nonexpressive conduct. Answering this question
28
STATE V. SHACKELFORD
Murphy, J., concurring
determines whether the First Amendment is implicated.” (citation omitted)).
However, under the definition of the phrase “course of conduct” contained in N.C.
Gen. Stat. § 14-277.3A, a single act is not enough to support a stalking conviction.
Rather, “two or more acts” are required. N.C. Gen. Stat. § 14-277.3A(b)(1). Therefore,
Defendant’s convictions in 16 CRS 10029 and 10030 must also be vacated.
B. 16 CRS 10034
Defendant’s indictment in 16 CRS 10034 encompassed the time period between
11 November 2015 and 22 December 2015. His indictment on that charge was
premised upon three of his Google Plus posts along with the two emails that
Defendant sent to Mary’s friend.
Even assuming — without deciding — that Defendant’s emails to her friend
are not entitled to First Amendment protection, this conviction must likewise be
vacated. It is well established that where a defendant’s conviction may have rested
on a constitutional ground or an unconstitutional ground and it cannot be determined
which ground the jury relied upon, the conviction must be vacated. See, e.g., Griffin
v. United States, 502 U.S. 46, 53, 116 L. Ed. 2d 371, 379 (1991) (“[W]here a provision
of the Constitution forbids conviction on a particular ground, the constitutional
guarantee is violated by a general verdict that may have rested on that ground.”);
Bachellar v. Maryland, 397 U.S. 564, 569-70, 25 L. Ed. 2d 570, 575 (1970) (“[T]he jury
could have rested its verdict on any of a number of grounds. . . . [P]etitioners may
29
STATE V. SHACKELFORD
Murphy, J., concurring
have been found guilty . . . because they advocated unpopular ideas. Since conviction
on this ground would violate the Constitution, it is our duty to set aside petitioners’
convictions.”).
In the present case, the jury returned general verdicts that did not state the
specific acts forming the basis for each conviction. For this reason, based on the
record before us we cannot determine whether Defendant’s conviction in 16 CRS
10034 was premised upon his social media posts, the emails to Mary’s friend, or a
combination of the two. Therefore, because this conviction may have likewise rested
upon an unconstitutional ground, it must be vacated as well. See Stromberg v.
California, 283 U.S. 359, 369-70, 75 L. Ed. 1117, 1123 (1931) (“The first clause of the
statute being invalid upon its face, the conviction of the appellant, which so far as the
record discloses may have rested upon that clause exclusively, must be set aside.”).
***
As this case aptly demonstrates, difficult issues arise in attempting to balance,
on the one hand, society’s laudable desire to protect individuals from emotional injury
resulting from unwanted and intrusive comments with, on the other hand, the free
speech rights of persons seeking to express themselves on social media. Our courts
will no doubt continue to grapple with these issues going forward. In the present
case, however, it is clear that Defendant’s convictions violated his constitutional right
to free speech. His Google Plus posts about Mary — while understandably offensive
30
STATE V. SHACKELFORD
Murphy, J., concurring
to her — constituted protected speech that cannot constitutionally be prohibited by
the State. As such, we are compelled to vacate his convictions.5
Conclusion
For the reasons stated above, we vacate Defendant’s convictions for felony
stalking.
VACATED.
Judge HUNTER, JR. concurs.
Judge MURPHY concurring by separate opinion.
5 Based on our ruling, we need not address the additional arguments Defendant has raised in
this appeal.
31
No. 18-273 – State v. Shackelford
MURPHY, Judge, concurring by separate opinion.
I concur with the Majority that Defendant’s convictions under N.C. Gen. Stat.
§ 14-277.3A should be vacated. I write separately to express additional thoughts
regarding the inapplicability of the First Amendment’s speech integral to criminal
conduct exception to Defendant’s convictions.
The U.S. Supreme Court, as the Majority notes, has long made clear that First
Amendment protections of freedom of speech do not extend to “speech or writing used
as an integral part of conduct in violation of a valid criminal statute.” Giboney v.
Empire Storage & Ice Co., 336 U.S. 490, 498, 93 L. Ed. 834, 841 (1949). It has been
noted that the “boundaries and underlying rationale [of the speech integral to
criminal conduct exception] have not been clearly defined, leaving the precise scope
of the exception unsettled.” U.S. v. Osinger, 753 F.3d 939, 950 (9th Cir. 2014)
(Watford, J., concurring). The difficulties of applying this nebulous exception are
compounded in the context of stalking crimes, where the lines between speech and
non-speech conduct are often blurred. Thus, it is necessary to return to the basic
tenet of the exception and carefully analyze the actions of a defendant to determine
the exception’s applicability, lest all speech be relabeled conduct and stripped of its
First Amendment protections.6
6 See Eugene Volokh, The “Speech Integral to Criminal Conduct” Exception, 101 Cornell L.
Rev. 981, 1039-40 (2016).
STATE V. SHACKELFORD
Murphy, J., concurring
The State contends that this exception necessarily applies to the crime of
stalking. It argues, “Stalking harasses and intimidates its victims. When these
harms flow from any expressive aspect of stalking, that expressive aspect is integral
to the crime.” This is an oversimplification of the exception. “[S]peech or writing
used as an integral part of conduct in violation of a valid criminal statute” falls within
the exception and is unprotected by the First Amendment. Giboney, 336 U.S. at 498,
93 L. Ed. at 841 (emphasis added). Thus, the speech itself must be proximately linked
to a criminal act and cannot serve as the basis for the criminal act itself. See
Relerford, 2017 IL 121094 at ¶ 45, 104 N.E.3d at 352 (2017). Stated differently, there
must be non-speech conduct to which the speech is integral.
Here, the Majority notes that each indictment was “premised either entirely or
in part upon social media posts referencing Mary – posts that he wrote about Mary
but did not send directly to her (or, for that matter, to anyone else).” Section I(C)(1),
supra. I believe this is a critical distinction in this case, as the nature of these posts
cannot be conduct that serves as the basis for a stalking conviction. As our Supreme
Court has noted, “[p]osting information on the Internet – whatever the subject matter
– can constitute speech as surely as stapling flyers to bulletin boards or distributing
pamphlets to passersby – activities long protected by the First Amendment.” State
v. Bishop, 368 N.C. 869, 873, 787 S.E.2d 814, 817 (2016). This is of significant import
under a First Amendment analysis, as one court has noted in an as-applied challenge
2
STATE V. SHACKELFORD
Murphy, J., concurring
to the federal statute, “[o]ne does not have to walk over and look at another person’s
bulletin board; nor does one Blog or Twitter user have to see what is posted on another
person’s Blog or Twitter account. This is in sharp contrast to a telephone call, letter
or e-mail specifically addressed to and directed at another person . . . .” See U.S. v.
Cassidy, 814 F. Supp. 2d 574, 578 (D. Md. 2011). In the latter situation, there is
speech to a person individually, whereas the former is merely speech about a person.7
This is a key distinction because in cases where speech is made, such as
through telephone harassment or unwanted contact through mailings, to a single
recipient repeatedly, First Amendment considerations of protecting the
communication of ideas is diminished when the recipient is an unwilling listener.
The expressive value is diminished. See Rumsfeld v. Forum for Acad. & Inst'l Rights,
Inc., 547 U.S. 47, 66, 164 L. Ed. 2d 156, 175 (2006) (“Instead, we have extended First
Amendment protection only to conduct that is inherently expressive[, such as flag
burning].”). Yet, a public posting that is not aimed or directed at a single person
retains its expressive value (assuming no other exceptions, such as true threats, is
applicable to the speech). Of course, the ubiquitous nature of social media in modern
7 See Eugene Volokh, One–to–One Speech vs. One–to–Many Speech, Criminal Harassment
Laws, and “Cyberstalking,” 107 Nw. U. L. Rev. 731, 742 (2013) (“[Laws addressing telephone
harassment, stalking, and unwanted mailings] have one thing in common: In the great bulk of their
applications, they restrict what one may call ‘unwanted one-to-one’ speech – speech said to a particular
person in a context where the recipient appears not to want to hear it, whether because the recipient
has expressly demanded that the speech stop or because the speaker intends to annoy or offend the
recipient. The laws are aimed at restricting speech to a person, not speech about a person. And that
is the context in which they have generally been upheld against First Amendment challenge.”)
3
STATE V. SHACKELFORD
Murphy, J., concurring
society and the ability of posters to “tag” or “direct message” other users may impact
this analysis; however, that is not the case with Defendant’s Google+ postings. These
postings, while numerous, cannot themselves constitute “conduct.” See Bishop, 368
N.C. at 874, 787 S.E.2d at 818 (“Such communication does not lose protection merely
because it involves the ‘act’ of posting information online, for much speech requires
an ‘act’ of some variety – whether putting ink to paper or paint to canvas, or hoisting
a picket sign, or donning a message-bearing jacket.”)
To be clear, there was action taken by Defendant that constituted non-speech
conduct – sending cupcakes to Mary. However, N.C. Gen. Stat. § 14-277.3A permitted
the jury to base their conviction in each indictment on the social media posts made to
the public alone. See N.C. Gen. Stat. § 14-277.3A(b)(1) (defining course of conduct as
“[t]wo or more acts . . . in which the stalker . . . communicates to or about a person . .
. ”) (emphasis added). As the Majority notes, this impermissibly allowed “the speech
itself [to be] the crime” and did not require speech to be integral to separate conduct.
See Section I(C)(1) supra.
I also wish to address the State’s citation of Osinger in support of its argument
that Defendant’s posts were speech integral to criminal conduct and explain why such
a case upholding the constitutionality of the federal interstate stalking statute is
distinguishable from the case and the statute before us. In Osinger, while analyzing
the defendant’s as-applied challenge to the federal interstate stalking statute, the
4
STATE V. SHACKELFORD
Murphy, J., concurring
Ninth Circuit held that “[a]ny expressive aspects of Osinger’s speech were not
protected under the First Amendment because they were ‘integral to criminal
conduct’ in intentionally harassing, intimidating or causing substantial emotional
distress.” Osinger, 753 F.3d at 947. The Osinger case is fully distinguishable on two
bases. First, Congress defined “course of conduct” as “a pattern of conduct composed
of 2 or more acts, evidencing a continuity of purpose.” Id. at 944 (citing 18 U.S.C. §
2266(2)) (emphasis added). Congress included no language indicating that a course
of conduct could be established solely by two communications about a person, as is
the case with N.C. Gen. Stat. § 14-277.3A. Moreover, as the Osinger concurrence
noted, that case did not present the court with the question of whether a stalking
prosecution would be constitutional in situations where “the defendant caused
someone substantial emotional distress by engaging only in otherwise protected
speech.” Osinger, 753 F.3d at 954 (Watford, J., concurring). Accordingly, our as-
applied analysis differs from that in Osinger.
In conclusion, I recognize the challenges that modern social media present in
the context of stalking crimes. These challenges will continue to produce difficult
questions of how to apply First Amendment principles, such as the speech integral to
criminal conduct exception, in these increasingly complex situations. While many of
these questions go beyond the scope of this concurrence or our Majority opinion, I
5
STATE V. SHACKELFORD
Murphy, J., concurring
concur in the case before us, as the First Amendment requires us to vacate
Defendant’s convictions.
6