State v. Taylor

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA18-810

Filed: 17 March 2020

Macon County, No. 16 CRS 50976

STATE OF NORTH CAROLINA

v.

DAVID WARREN TAYLOR, Defendant.

Appeal by Defendant from judgment entered 23 January 2018 by Judge Gary

M. Gavenus in Superior Court, Macon County. Heard in the Court of Appeals 11

April 2019.

Attorney General Joshua H. Stein, by Solicitor General Matthew W. Sawchak

and Solicitor General Fellow Matthew C. Burke, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Aaron

Thomas Johnson, for Defendant.

McGEE, Chief Judge.

David Warren Taylor (“Defendant”) was convicted on 23 January 2018,

pursuant to N.C.G.S. § 14-16.7(a) (2017) (“N.C.G.S. § 14-16.7(a)” or “the statute”), of

“Threatening to Kill a Court Officer,” Macon County District Attorney Ashley Welch

(“D.A. Welch”). In Watts v. United States, the United States Supreme Court held the

First Amendment required that, in order to constitutionally convict a defendant

pursuant to an anti-threat statute, the government had to prove that the “threat”

alleged constituted a “true threat”:

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[T]he [anti-threat] statute . . . requires the Government to

prove a true “threat.” We do not believe that the kind of

political hyperbole indulged in by [the defendant] fits

within that statutory term. For we must interpret the

language Congress chose “against the background of a

profound national commitment to the principle that debate

on public issues should be uninhibited, robust, and wide-

open, and that it may well include vehement, caustic, and

sometimes unpleasantly sharp attacks on government and

public officials.” The language of the political arena . . . is

often vituperative, abusive, and inexact.

Watts v. United States, 394 U.S. 705, 708, 22 L. Ed. 2d 664, 667 (1969) (citation

omitted).

In this case, the alleged threats were included in several Facebook comments

Defendant posted to his personal Facebook page on 24 August 2016, between

approximately 5:30 p.m. and 6:30 p.m. These posts were visible to Defendant’s

Facebook friends for one to two hours until Defendant deleted them. However, one

of Defendant’s Facebook friends, Detective Amy Stewart (“Detective Stewart”) of the

Macon County Sheriff’s Office, who was also a friend of D.A. Welch, saw Defendant’s

comments and took screenshots of some of the posts before they were deleted by

Defendant. Detective Stewart shared the screenshots with the Macon County Sheriff

(the “sheriff”) and D.A. Welch. The sheriff contacted the North Carolina State Bureau

of Investigation (“SBI”) that evening, and the SBI became the investigative body in

this matter. Based primarily upon a comment Defendant made in one of his posts

that “[i]f our head prosecutor won’t do anything then the death to her as well[,]”

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Defendant was charged with threatening a court officer pursuant to N.C.G.S. § 14-

16.7(a). At trial, Defendant requested a jury instruction on the First Amendment

requirement, as determined by the Supreme Court in Watts and subsequent opinions,

that a person cannot be charged or convicted under an anti-threat statute unless the

State proves that the alleged threat constituted a “true threat.” Defendant’s motion

was denied, and he was convicted.

Defendant appealed and makes an “as applied” constitutional challenge to

N.C.G.S. § 14-16.7(a), alleging “the trial court erred in failing to dismiss the charge”

because the State failed to prove the “true threat” element of the statute as required

by the First Amendment. In addition, Defendant argues that “the trial court erred

in failing to instruct the jury on the definition of a true threat[,]” also in violation of

the First Amendment. Because we find that N.C.G.S. § 14-16.7(a) was applied to

Defendant in violation of his First Amendment rights, we vacate his conviction.

I. Factual and Procedural Background

Defendant was indicted on 19 September 2016 for violation of the statute,

which states in relevant part: “Any person who knowingly and willfully makes any

threat . . . to kill any . . . court officer . . . shall be guilty of a felony[.]” N.C.G.S. § 14-

16.7(a). The indictment included five quotes from Defendant’s Facebook comments:

[D]efendant . . . did knowingly and willfully make a threat

to kill [D.A. Welch], . . . by posting the following on

Facebook: “[P]eople question why a rebellion against our

government is coming? I hope those that are friends with

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her share my post because she will be the first to go. . . . I

will give them both the mtn justice they deserve . . . [.] If

our head prosecutor won’t do anything then the death to

her as well. . . . [I]t is up to the people to administer

justice! I’m always game to do so. They make new ammo

everyday! . . . It is time for old Time mtn justice!”[1]

Defendant was tried on 23 January 2018. Detective Stewart testified at trial

that Defendant and D.A. Welch were friendly acquaintances prior to the events of 24

August 2016, which led to Defendant’s conviction. Defendant worked for an

investment and insurance company in an office next to the Macon County

Courthouse. Defendant and D.A. Welch saw each other daily in a common outdoor

smoking area shared by employees at Defendant’s office building and the courthouse.

Detective Stewart also used the same smoking area. Defendant’s interactions with

both women were always polite, and D.A. Welch testified that Defendant’s favorite

topic of conversation seemed to be politics. Detective Stewart testified that she and

Defendant “had some of the same political beliefs and so we were friends on

Facebook.” She testified that on the evening of 24 August 2016, between 5:00 p.m.

and 6:00 p.m., she signed on to Facebook and noticed some posts by Defendant that

troubled her. Detective Stewart testified that Defendant’s “initial post was about him

being upset about a decision by the D.A.’s office with a case regarding a baby [(the

1 The Facebook posts contain some common messaging shorthand substitutes for words, as

well as loose punctuation and capitalization. We include them as they were written, taken from the

State’s screenshot exhibits, instead of reproducing them from the transcription of Detective Stewart’s

testimony. The posts from Defendant’s Facebook friends were not read by Detective Stewart, so they

are also quoted from the screenshots.

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‘child’)] that had died. [T]here were no charges being brought [by D.A. Welch] against

the parents [(the ‘parents’)], so he was upset about that.”

Defendant’s first post referenced the fact that the parents were not going to be

prosecuted by D.A. Welch, addressed his belief that the “judicial system” was not

working, and expressed his frustration that “[w]ith this [decision not to prosecute]

people question why a rebellion against our government is coming? I hope those that

are friends with her share my post because she will be the first to go, period and point

made.” Some of Defendant’s Facebook “friends” responded to this post, and a

“conversation” between Defendant and these friends ensued, which included

disparaging remarks about D.A. Welch, politicians, the local justice system, and law

enforcement officers. This Facebook conversation occurred in the time period

between 5:30 p.m. and 6:30 p.m. Detective Stewart testified that she saw this

conversation no later than 6:00 p.m. and, approximately an hour and a half later, she

decided to take screenshots of some of the comments. The screenshots indicate that

they were taken at approximately 7:30 p.m. Along with screenshots of some of the

exchange between Defendant and his Facebook friends regarding the decision not to

prosecute the parents, Detective Stewart also took screenshots of Defendant’s

Facebook profile, which included a large picture of John Wayne and a quote

attributed to John Wayne stating: “Life is hard; it’s harder if you’re stupid.” A

smaller picture of Defendant’s profile consisted of an American flag background with

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part of the “Gadsden” flag which includes a coiled snake and the first two words of

the “Don’t Tread on Me” slogan. Defendant’s profile information also indicated that

Defendant had attended Franklin High School, and that he was an Army veteran.

Detective Stewart testified that, after taking the screenshots, she called D.A.

Welch and the sheriff to inform them about the comments. Detective Stewart also

forwarded the screenshots to D.A. Welch and the sheriff. D.A. Welch contacted her

office and informed her Chief Assistant D.A. of Detective Stewart’s concerns; the

matter was referred to the SBI that evening. Detective Stewart went back on

Facebook an “hour or two” after capturing the screenshots, and Defendant’s posts

were no longer there, having been deleted by Defendant.

The following day, at approximately 1:25 p.m., SBI Special Agent Joel Schick

(“Agent Schick”) and another agent went to Defendant’s workplace to interview him

about his Facebook posts. Following the interview, Agent Schick left Defendant at

Defendant’s workplace, then returned to Defendant’s office at approximately 3:20

p.m. with a warrant for Defendant’s arrest, which stated there was probable cause to

believe Defendant “knowingly ma[de] a threat to kill . . . [D.A. Welch], by posting ‘If

our head prosecutor won’t do anything then the death to her as well’” on his Facebook

page.

Early in Defendant’s trial, Defendant objected as the State was attempting to

introduce five of Defendant’s Facebook comments through the testimony of Detective

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Stewart. Detective Stewart and Agent Schick were questioned on voir dire, and

Defendant argued (1) that none of the Facebook posts should be admitted due to

authentication issues and, (2) in the alternative, if any of the posts were admitted, all

of the posts should be admitted to provide context. The State argued that only the

five posts it had chosen should be admitted, and the rest should be suppressed as

hearsay, and because they were “irrelevant” to Defendant’s charges. The trial court

ruled against Defendant on the authentication argument, and the discussion then

centered on whether to admit some or all of the posts captured by Detective Stewart’s

screenshots. The State argued the additional posts should not be admitted,

dismissing Defendant’s argument that the alleged threat had to be proven based upon

its context: “We believe those are the five relevant texts. It’s the State’s position that

the other texts . . . are not relevant.”

[THE STATE:] I don’t think the other conversations are

relevant. There’s no exception to the statute for

communicating threats if you’re involved in a conversation

with other people that are equally upset. The question is

under the elements and under the statute did [D]efendant

threaten to kill [D.A. Welch]. The context of that

conversation is not relevant[.] And the State would argue

that . . . it’s not relevant. There is no, like I said,

justification for your threat to kill[.]

Defendant responded that the other posts were “clearly relevant to [Defendant’s]

[free] speech” argument:

[The additional posts] are relevant on the issue of whether

or not this is a true threat under various United States

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Supreme Court decisions[.] I know the District Attorney

characterizes this as a threat, but when you look at all

these things, you don’t see anything where my client said,

“I’m going to kill the District Attorney.” So . . . it falls

under the definition of a true threat as to whether or not

it’s even a threat. And when you look at the definition of a

true threat, there has to be a communication showing a

serious intent to cause harm to [D.A. Welch]. That’s the

standard. And without seeing what these other posts are

saying, there’s no way for the jury to get a full view of

what’s going on here.

At trial, the State had Detective Stewart read the five Facebook posts that it

had selected, which were marked as State’s Exhibits 1 through 5 (“State’s Exhibits 1

– 5”), which Detective Stewart described as “parts of the screen shots that I took with

just [Defendant]’s posts and comments without the other people that responded.”

Two of the five posts introduced by the State did not include any statements contained

in Defendant’s indictment, and the post including the “old Time mtn justice!”

comment was not included in State’s Exhibits 1 – 5. From the record and statements

of Defendant’s attorney, it does not appear that Detective Stewart took screenshots

of all the posts and comments from the Facebook discussion relevant to this case.

Further, according to voir dire testimony, there were seven people, in addition to

Defendant, whose comments were included in Detective Stewart’s screenshots, but

the comments of only four of them are included in the record. An eighth person, J.

Drake, is identified as having “liked” Defendant’s initial post.

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At trial, Detective Stewart was asked to read the five selected posts, State’s

Exhibits 1 – 5, one immediately after the other, without discussing any of the

additional comments. On cross-examination, Detective Stewart read at least some of

the additional posts contained in Detective Stewart’s screenshots. During direct

examination, Detective Stewart was asked to read State’s Exhibits 4 and 5 out of the

chronological order in which they were posted by Defendant. We present State’s

Exhibits 1 – 5, along with the additional comments captured in Detective Stewart’s

screenshots, in the proper chronological order of their posting. The comments in

State’s Exhibits 1 – 5 that were included in Defendant’s indictment are underlined.

State’s Exhibit 1, which was Defendant’s initial post, stated:

So I learned today that the couple Who brought their child

Into that er whom had been dead to the point that the er

room had to be closed off due to the smell of the dead child

Will face no Charges. I regret the day I voted for the new

DA with this outcome. This is totally sickening to know

that a child, Whether by [D.A.] Ashley Welch’s decision or

not is not granted this type of Protection in our court

system. Im tired of standing back and seeing how our

judicial system works. I voted for it to change and

apparently it never will. With this people question why a

rebellion against our government is coming? I hope those

that are friends with her share my posts because she will

be the first to go, period and point made

(Emphasis added). This post had six “emoji” responses and thirteen comments at the

time Detective Stewart took the screenshot. All of the emoji responses and comments

by Defendant’s Facebook friends in the record expressed some level of agreement with

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Defendant’s statements. Detective Stewart then testified that Defendant “continued

posting about how he was upset about that decision and negative things about” D.A.

Welch.

Detective Stewart next read State’s Exhibit 2:

Sick is not the word for it. This folks is how the government

and the judicial System works, Now U wonder why I say if

I am raided for whatever reason like the guy on smoke rise

was. When the deputy ask me is it worth it. I would say

with a Shotgun Pointed at him and a ar15 in the other arm

was it worth to him? Who cares what happens to the

person I meet at the door. I’m sure he won’t. I would

open every gun I have. I would rather be carried by six

than judged by twelve. This folks is how politicians want

u to believe is okay. I’m tired of it. What I do Training wise

from this point is ur fault. And yes I know I have friends

on fb whom see this. I hope they do! Death to our so called

judicial system since it only works for those that are guilty!

U want me come and take me

This post had two “likes” at the time of the screenshot. Nothing from this post was

included in Defendant’s indictment. In response to this comment, someone named R.

Burch (“Burch”) responded “vigilante justice !!!!!!!!!!!!!!!!!!!!!![,]” which had one “like.”

A man identified as D. Sammons commented: “I wouldn’t expect that from Franklin

but maybe Asheville.” Defendant responded: “D[.] Sammons she doesn’t serve the

Asheville city, only west of there. Haywood county to the tn state line. This is how

politics works. That’s why my harsh words to her and any other that will Listen and

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share it to her fb page.”2 A woman identified as J. Crossman posted: “Poor little guy,

he didn’t get any justice. Ashley [(D.A. Welch)] can you give your County Citizens

that you represent any answers? Please.”3

Immediately following State’s Exhibit 2, Detective Stewart read State’s

Exhibit 3:

If that what it takes R[.] Burch. I will give them both the

mtn justice they deserve. Regardless of what the law or

courts say. I’m tired of this political bullshit. If our head

prosecutor won’t do anything then the death to her as well.

Yeah, I said it. Now raid my house for communicating

threats and see what they meet. After all those that flip

Together swim together. Although this isn’t a house or

pond they want to fish in.

(Emphasis added). This post had one “like.” Burch then posted: “I’m still waiting.”

Detective Stewart next read State’s Exhibit 4, even though it was posted after State’s

Exhibit 5. Therefore, we quote State’s Exhibit 5 next:

For what R[.] Burch? Her to reply? She won’t because

she is being paid a 6 digit income standing Outside the

courthouse smoking a cigarette. She won’t try a case

unless it gets her tv time. Typical politician. Notice that

none of them has responded yet? Although I’m sure My

house is being Monitored right about now! I really hope

They are ready for what meet them at the front door.

Something tells Me they aren’t!

2 Names included in a post that show up in bold mean that person was “tagged” in the post.

When a person is tagged in a post, that person will get a notification informing them of this fact and

be provided a link directly to the associated post.

3 Again, these additional posts were not included in State’s Exhibits 1 – 5, and the State did

not have Detective Stewart read these posts into evidence; Defendant had Detective Stewart read them

to the jury on cross-examination.

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This post did not include any comments that were in Defendant’s indictment. Burch

then posted: “I’m waiting on you boys to say it’s time to go!!!!!!!!!!!!!!!” This post was

followed by a large “laughing” emoji also posted by Burch. These posts were not read

by Detective Stewart on direct examination. Detective Stewart read State’s Exhibit

4 last, in which Defendant stated:

It can start at my house. Hell this has to start somewhere.

If the courts won’t do it as have been proven. Then yes it

Is up to the people to administer justice! I’m always game

to do so. They make new ammo everyday! Maybe you need

to learn what being free is verse being a puppet of the

government. If u did u might actually be happy! I think

we both know of someone who will like this Comment Or

Like this post.

(Emphasis added).

On cross-examination, Defendant asked Detective Stewart to read the posts

not introduced in her direct examination, being the non-State’s Exhibit posts included

above, as well as the posts that follow. A woman identified as S. Marion commented:

“I know people who said the ER room had to be shut down because the smell of the

dead kid stunk up the entire ER room. Our DA and police department chose not to

press charges. Yea that’s the facts. Welcome to America. The once great great

nation.” Defendant responded to this post with the following two comments:

Don’t get me started on this. The court system and Most

importantly western nc justice system is useless. It’s all

about money to the courts than it is about justice. It is time

for old Time mtn justice! Yes R[.] Burch I said it. Now let

Them knock on my door

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R[.] Burch don’t get me Started about The Tony Curtis

killing. Of Course No charges will Be brought against him.

He is what the county considers to be a upstanding citizen

of the community. Typical politics at its best. What he did

was no different to the killing On 411 North over a year

ago. What was his name? Fouts?

(Emphasis added). Although this second mention of “mountain justice” is included in

the indictment, it was not included in State’s Exhibits 1 – 5. Detective Stewart

testified that “Tony Curtis” and “Fouts” referenced homicide cases handled by the

D.A.’s office. This last post appears to be in response to a comment not included in

the record.

Detective Stewart testified she knew Defendant had an office next to the

courthouse. She and Defendant would see each other on a regular basis in a common

smoking area outside the offices, and that D.A. Welch also frequently smoked in the

same area. Detective Stewart never noticed any problems between Defendant and

D.A. Welch.

D.A. Welch testified that she saw Defendant “pretty frequently on a daily

basis” because they worked in adjacent buildings and both used the smoking area.

She testified that Defendant “[n]ever said anything that [she] considered to be

threatening” and that he was “always polite with” her. D.A. Welch also stated that

Defendant was “real political,” so their conversations were “usually political speech.”

D.A. Welch testified that she did not change her smoking habits or the location of her

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smoke breaks as a result of Defendant’s Facebook posts. She testified that she did

request that her real estate agent take down a video tour of her home “so that it

wasn’t so easy to figure out where I lived.” However, she declined the sheriff’s offer

to have “somebody come out” that night to watch her house, and neither “the Sheriff’s

Department [n]or the SBI [] dispatch[ed]” officers “out to [her] house to sit[.]” The

next morning, 25 August 2016, D.A. Welch went to the courthouse as usual. She

testified the only difference she noticed was more “sheriff officers from civil process”

around the courthouse than was normal, so she “apologized to them” and “kept telling

them I’m okay, you know, you don’t have to –[,]” at which point the State asked a

different question. She was unaware of any security provided for her outside the

courthouse, and she had not “heard from [D]efendant since that night[.]”

Agent Schick, the first law enforcement officer to contact Defendant about the

Facebook posts, arrived at Defendant’s office on 25 August 2016 at approximately

1:25 p.m. He testified that Defendant was “polite” and “courteous” and answered all

his questions. Defendant told Agent Schick that he started cooking hamburgers for

his family around 5:00 p.m.; drank approximately six beers during the evening; made

the post about D.A. Welch’s decision not to prosecute the parents of the child who had

died, and engaged in the resulting Facebook conversation; but that he deleted the

posts between 7:00 p.m. and 8:00 p.m. Defendant told Agent Schick that “he could

not believe no charges were brought against the parents for neglect and felt this was

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sickening[,]” and that “[i]f it were me, charges would have been brought against me.”

Defendant stated that “he would not threaten to kill a public official and knew this

was against the law[.]”

Defendant “told [Agent Schick] that he took the Facebook [posts] down because

he did not want people to think he was threatening anyone or taking things the wrong

way[,]” and he also would not want his posts to somehow get back to the “child’s

parents.” Defendant had deleted his posts within a couple of hours of having posted

them. Defendant then told Agent Schick that he would never threaten anyone unless

“they threatened my kids or family or trespass on my property.” Defendant

emphatically stated to Agent Schick that “he knew . . . for sure” that he did not

“threaten to kill someone”; “nor did he mean to threaten anyone”; and “that he had

no intention of making anyone feel threatened and that was the last thing that he

wanted to do[.]” Defendant asked Agent Schick to apologize to D.A. Welch when he

next saw her, and to let her know Defendant had not intended to make her feel

threatened.

As far as Agent Schick knew, no law enforcement agency was “keeping an eye

on [Defendant] because of the[] posts[,]” and no search was ever conducted of

Defendant’s house, office, or car. Defendant was left unsupervised after Agent Schick

questioned him until Agent Schick returned with a warrant for Defendant’s arrest at

approximately 3:20 p.m., when Defendant was taken into custody without resistance.

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There is no record evidence that any attempt was made to confiscate Defendant’s

firearms during the nearly one-and-a-half-year period between when Defendant

posted the above comments and when he was convicted for having done so.

Defendant moved to dismiss at the close of the State’s evidence, and Defendant

did not present any evidence. Defendant’s motion to dismiss was based on the

requirement of the First Amendment that an anti-threat statute such as N.C.G.S. §

14-16.7(a) must be read as requiring proof of a “true threat” as defined by the United

States Supreme Court. Defendant argued: “When you look at the cases concerning

free speech, the test is [considering] the context . . . is this a true threat. The

definition of that is, is this a statement in which the defendant means to communicate

a serious intention of committing an act of unlawful violence against a particular

person[.]” The State contested Defendant’s argument that First Amendment “true

threat” jurisprudence placed any additional burden on the State, contending: “Your

Honor, the elements of the charge . . . [are] did [D]efendant threaten to kill [D.A.

Welch]. Is [D.A. Welch] a court official, and did he know she was the District

Attorney. The State through its evidence has presented evidence as to all three of

those matters.” The trial court then ruled: “I have considered the motion and

certainly taken in the light most favorable to the State, there’s evidence of each and

every element of the crime. The motion is denied.”

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At the charge conference, Defendant requested an instruction on “true threat,”

arguing that the First Amendment required such an instruction. The State objected

to the requested instruction, arguing that the First Amendment did not require any

“true threat” or intent elements be added to the plain language of the statute: “The

State would object to all these instructions[.] The pattern jury instructions are clear

that there are three and only three elements to this charge. Now with regards to the

threat, the only element is that the defendant knowingly and willfully made a threat

to kill the victim.” The State further argued that the First Amendment did not apply

to Defendant’s case: “I get that the defendant is raising First Amendment objections

to that statute as it’s written, but I think the proper venue to take that up would be

if upon conviction to take that up on appeal.” “Therefore, it is the legislature’s intent

. . . that there be no requirement of proof to show that the threat was made in a

manner and under circumstances which would cause a reasonable person to believe

it is likely to be carried out.” “[M]aking any threats towards . . . court officials . . . is

unacceptable to the legislature, regardless of whether they were made in a manner

that a reasonable person would believe they would be carried out.” The trial court

denied Defendant’s requested instruction, and Defendant was found guilty of

threatening to kill D.A. Welch pursuant to N.C.G.S. § 14-16.7(a) on 23 January 2018.

Defendant was sentenced to six to seventeen months’ imprisonment, which was

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suspended, and Defendant was placed on twenty-four months’ supervised probation.

Defendant appeals. Additional facts will be included in our analysis.

II. First Amendment

Defendant’s arguments are based upon allegations that his conviction was in

violation of the First Amendment, which generally “prevents government from

proscribing speech, or even expressive conduct, because of disapproval of the ideas

expressed. Content-based regulations are presumptively invalid.” R.A.V. v. City of

St. Paul, 505 U.S. 377, 382, 120 L. Ed. 2d 305, 317 (1992) (citations omitted). The

Supreme Court’s interpretation of the First Amendment “has permitted restrictions

upon the content of speech in a few limited areas, which are ‘of such slight social value

as a step to truth that any benefit that may be derived from them is clearly

outweighed by the social interest in order and morality.’” Id. at 382–83, 120 L. Ed.

2d at 317 (citations omitted). Although the Court has referred to the categories of

speech that may be restricted without implicating the First Amendment as

constitutionally “unprotected” speech and said that “the ‘protection of the First

Amendment does not extend’ to them,” id. at 383, 120 L. Ed. 2d at 317 (citations

omitted), the Court has clarified

that these areas of speech can, consistently with the First

Amendment, be regulated because of their constitutionally

proscribable content ([“true threat,”] obscenity, defamation,

etc.)—not that they are categories of speech entirely

invisible to the Constitution, so that they may be made the

vehicles for content discrimination unrelated to their

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distinctively proscribable content. Thus, the government

may proscribe libel; but it may not make the further

content discrimination of proscribing only libel critical of

the government.

Id. at 383–84, 120 L. Ed. 2d at 318 (citations omitted) (emphasis in original). “The

government may not regulate use [of traditionally proscribable speech] based on

hostility—or favoritism—towards the underlying message expressed.” Id. at 386, 120

L. Ed. 2d at 320 (citations omitted). There are a limited number of categories of

potentially proscribable speech, “[a]mong these categories are advocacy intended, and

likely, to incite imminent lawless action; obscenity; defamation; speech integral to

criminal conduct; so-called ‘fighting words;’ child pornography; fraud; [and] true

threats[.]” United States v. Alvarez, 567 U.S. 709, 717–18, 183 L. Ed. 2d 574, 586–87

(2012) (citations omitted); see also Hest Techs., Inc. v. State ex rel. Perdue, 366 N.C.

289, 297, 749 S.E.2d 429, 435 (2012). For simplicity, we will refer to these categories

of speech as proscribable, or “unprotected” speech, even though that characterization

is not entirely accurate. As will be discussed below, “true threats” are a subset of

“threats,” as defined through First Amendment jurisprudence, which are of such a

clearly “threatening” nature that their criminalization is not prohibited by the First

Amendment, despite their normally expressive nature. R.A.V., 505 U.S. at 382, 120

L. Ed. 2d at 317.

Defendant argues that in order for him to have been constitutionally

prosecuted and convicted pursuant to N.C.G.S. § 14-16.7(a), the State was required

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Opinion of the Court

to prove his Facebook posts constituted not just “threats,” but “true threats.”

Defendant further argues that the trial court was required to instruct the jury in

accordance with First Amendment “true threat” jurisprudence. However, review of

Defendant’s arguments is difficult because relevant issues regarding “true threats,”

and appellate review of issues involving “true threats,” have yet to be settled by the

courts of this State. We have only been able to locate four opinions by North Carolina

appellate courts that mention “true threats” in the context of First Amendment

protections: State v. Bishop, 368 N.C. 869, 787 S.E.2d 814 (2016), State v. Shackelford,

__ N.C. App. __, __, 825 S.E.2d 689, 703 (2019) (mentioning that “true threats” are

one of the recognized “unprotected” categories of speech), State v. Mylett, __ N.C. App.

__, 822 S.E.2d 518 (2018) (currently before our Supreme Court on appeal of right due

to dissent),4 and State v. Benham, 222 N.C. App. 635, 731 S.E.2d 275, 2012 WL

3570792 (2012) (unpublished). Therefore, we look first to general First Amendment

principles.

A. As-Applied Challenge and General Principles

Defendant makes only an as applied constitutional challenge to N.C.G.S. § 14-

16.7(a): “An as-applied challenge contests whether the statute can be constitutionally

applied to a particular defendant, even if the statute is otherwise generally

enforceable.” State v. Packingham, 368 N.C. 380, 383, 777 S.E.2d 738, 743 (2015)

4 Mylett includes some issues that are related to those currently before this Court.

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Opinion of the Court

(citation omitted), rev’d and remanded on other grounds, __ U.S. __, 198 L. Ed. 2d 273

(2017). Therefore, we do not address whether N.C.G.S. § 14-16.7(a) is facially

constitutional.

The basic distinction is that an as-applied challenge

represents a [defendant’s] protest against how a statute

was applied in the particular context in which [the

defendant] acted or proposed to act, while a facial challenge

represents a [defendant’s] contention that a statute is

incapable of constitutional application in any context.

. . . Only in as-applied challenges are facts surrounding

the [defendant’s] particular circumstances relevant.

Town of Beech Mountain v. Genesis Wildlife Sanctuary, Inc., 247 N.C. App. 444, 460,

786 S.E.2d 335, 347 (2016) (citations omitted), aff’d per curiam, 369 N.C. 722, 799

S.E.2d 611 (2017). In order for the statute to have been constitutionally applied to

Defendant, it must have been applied in accordance with the limitations set by the

First Amendment, i.e., the trial court must have treated the statute as containing all

required constitutional limitations, even if they were not contained in the plain

language of the statute. State v. Summrell, 282 N.C. 157, 167, 192 S.E.2d 569, 575

(1972), overruled on other grounds by State v. Barnes, 324 N.C. 539, 380 S.E.2d 118

(1989) (citations omitted) (“[A] statute which defines proscribed activity so broadly

that it encompasses constitutionally protected speech, cannot be upheld in the

absence of authoritative judicial limitations.”); see also Stromberg v. California, 283

U.S. 359, 369, 75 L. Ed. 1117, 1123 (1931).

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On appeal, the State acknowledges that in order for N.C.G.S. § 14-16.7(a) to

conform to the requirements of the First Amendment, it must be construed as limiting

the term “threat” to “true threat.”5 See United States v. White, 670 F.3d 498, 507 (4th

Cir. 2012) (“White I”) (citation omitted) (“[B]oth [the defendant] and the government

agree that § 875(c) can only be violated if the interstate communication contains a

‘true threat’ to injure a person.”). This is because the statute “restricts speech and

not merely conduct.” Bishop, 368 N.C. at 874, 787 S.E.2d at 818; see also id. at 876,

787 S.E.2d at 819 (defining a statute as “content based” if it “criminalizes 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”).

The freedom of citizens to express dissatisfaction with government action is at

the core of the First Amendment. “‘[The First] Amendment requires that one be

permitted to believe what he will. It requires that one be permitted to advocate what

he will unless’” his speech crosses over into the realm of “unprotected speech.” Dennis

v. United States, 341 U.S. 494, 508, 95 L. Ed. 1137, 1152 (1951) (alteration in original)

(citation omitted). “Government may cut [speech] off only when [the speaker’s] views

are no longer merely views but threaten, clearly and imminently, to ripen into

conduct against which the public has a right to protect itself.” Am. Commc’ns Ass’n

v. Douds, 339 U.S. 382, 395, 94 L. Ed. 925, 942 (1950).

5 This position is contrary to the State’s position at trial.

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The hallmark of the protection of free speech is to allow

“free trade in ideas”—even ideas that the overwhelming

majority of people might find distasteful or discomforting.

Thus, the First Amendment “ordinarily” denies a State

“the power to prohibit dissemination of social, economic

and political doctrine which a vast majority of its citizens

believes to be false and fraught with evil consequence.”

Virginia. v. Black, 538 U.S. 343, 358, 155 L. Ed. 2d 535, 551 (2003) (citation omitted).

Therefore, courts can, and must, if possible, read constitutional requirements

into a statute when they are not expressly included, because “‘impossible standards

of statutory clarity are not required by the constitution. When the language of a

statute provides an adequate warning as to the conduct it condemns and prescribes

boundaries sufficiently distinct for judges and juries to interpret and administer it

uniformly, constitutional requirements are fully met.’” State v. Strickland, 27 N.C.

App. 40, 42–3, 217 S.E.2d 758, 760 (1975) (emphasis added) (citation omitted).

However, in any individual prosecution, if a statute is not interpreted in accordance

with constitutional requirements, or is not administered in accordance with those

requirements, that statute will be considered unconstitutional as applied to the

defendant in that prosecution. Id.; Members of the City Council of L.A. v. Taxpayers

for Vincent, 466 U.S. 789, 803 n.22, 80 L. Ed. 2d 772, 785 n.22 (1984) (“The fact that

[a law] is capable of valid applications does not necessarily mean that it is valid as

applied to [a particular defendant].”). We are guided by the requirement that “First

Amendment standards . . . ‘must give the benefit of any doubt to protecting rather

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Opinion of the Court

than stifling speech.’” Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 327,

175 L. Ed. 2d 753, 773 (2010) (citation omitted).

The Supreme Court and North Carolina courts have developed a more

comprehensive body of law in relation to other “unprotected” categories of speech than

for “true threats.” Because the Court regularly borrows from its reasoning and

holdings concerning different “unprotected” categories of speech when deciding an

issue concerning a particular “unprotected” category of speech, we will do the same.

For example, in Ashcroft v. Free Speech Coalition, while reviewing an issue arising

from a prosecution under an anti-child pornography statute, the Supreme Court

looked to settled law from another “unprotected” category of speech, incitement to

violent action:

First Amendment freedoms are most in danger when the

government seeks to control thought or to justify its laws

for that impermissible end. The right to think is the

beginning of freedom, and speech must be protected from

the government because speech is the beginning of

thought.

To preserve these freedoms, and to protect speech for its

own sake, the Court’s First Amendment cases draw vital

distinctions between words and deeds, between ideas and

conduct. See Bartnicki v[.] Vopper, [532 U.S. 514, 529, 149

L. Ed. 2d 787, 803 (2001)] (“The normal method of deterring

unlawful conduct is to impose an appropriate punishment

on the person who engages in it[.]”). The government may

not prohibit speech because it increases the chance an

unlawful act will be committed “at some indefinite future

time.” The government may suppress speech for

advocating the use of force or a violation of law only if “such

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advocacy is directed to inciting or producing imminent

lawless action and is likely to incite or produce such

action.”

Ashcroft v. Free Speech Coal., 535 U.S. 234, 253, 152 L. Ed. 2d 403, 423 (2002)

(citations omitted); see also Black, 538 U.S. at 359–60, 155 L. Ed. 2d at 552 (looking

to incitement to violent action jurisprudence in support of the Court’s “true threat”

determination); United States v. Bly, 510 F.3d 453, 457–58 (4th Cir. 2007) (relying on

standard of review set by the Supreme Court in a defamation case to determine

standard in a “true threat” case).

In addition, the Supreme Court construes statutes that regulate speech

narrowly, and proof of some level of intent is required for prosecution pursuant to an

anti-threat statute. Id. In fact, First Amendment rights are often given greater

protection than other constitutional rights:

The test of legislation which collides with the Fourteenth

Amendment, because it also collides with the principles of

the First, is much more definite than the test when only

the Fourteenth is involved. Much of the vagueness of the

due process clause disappears when the specific

prohibitions of the First become its standard. The right of

a State to regulate, for example, a public utility may well

include, so far as the due process test is concerned, power

to impose all of the restrictions which a legislature may

have a ‘rational basis’ for adopting. But freedoms of speech

. . . may not be infringed on such slender grounds. They

are susceptible of restriction only to prevent grave and

immediate danger to interests which the state may

lawfully protect.

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W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 639, 87 L. Ed. 1628, 1638

(1943) (citations omitted). Therefore, a statute like N.C.G.S. § 14-16.7(a), “which

makes criminal a form of pure speech, must be interpreted with the commands of the

First Amendment clearly in mind[,]” Watts, 394 U.S. at 707, 22 L. Ed. 2d at 667, and

“the commands of the First Amendment” are particularly strict. Id.; Barnette, 319

U.S. at 639, 87 L. Ed. at 1638; see also United States v. Bagdasarian, 652 F.3d 1113,

1117 (9th Cir. 2011) (“Because the true threat requirement is imposed by the

Constitution, the . . . test set forth in Black must be read into all threat statutes that

criminalize pure speech.”). If state-law standards conflict with constitutional

requirements, the state law must give. The Supreme Court has held: “The standards

that set the scope of [First Amendment] principles cannot therefore be such that ‘the

constitutional limits of free expression in the Nation would vary with state lines.’”

Rosenblatt v. Baer, 383 U.S. 75, 84, 15 L. Ed. 2d 597, 605 (1966) (citation omitted).

Our Supreme Court also recognizes the principle that statutes which

criminalize speech must be construed in accordance with the commands of the First

Amendment. See State v. Brooks, 287 N.C. 392, 401, 215 S.E.2d 111, 118 (1975)

(construing anti-incitement statute to conform to First Amendment requirements by

holding that only speech constituting advocacy of “imminent lawless action,” as

defined in Brandenburg v. Ohio, 395 U.S. 444, 447, 23 L. Ed. 2d 430, 434 (1969), is

proscribed by that statute); see also Lewis v. Rapp, 220 N.C. App. 299, 302–03, 725

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S.E.2d 597, 601 (2012); Varner v. Bryan, 113 N.C. App. 697, 703, 440 S.E.2d 295, 299

(1994) (stating rule that the First Amendment requires proof of “actual malice”

element in a case of defamation against a public official).

The right of citizens to criticize public officials is at the heart of First

Amendment protections: “If the First Amendment has any force, it prohibits

Congress from fining or jailing citizens . . . for simply engaging in political speech.”

Citizens United, 558 U.S. at 349, 175 L. Ed. 2d at 788.

[A]bove 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.

Cohen v. California, [403 U.S. 15, 24, 29 L. Ed. 2d 284, 293

(1971) (and many additional cases cited)]. . . . Any

restriction on expressive activity because of its content

would completely undercut the “profound national

commitment to the principle that debate on public issues

should be uninhibited, robust, and wide-open.” N.Y. Times

Co. v. Sullivan, [376 U.S. 254, 270, 11 L. Ed. 2d 686, 701

(1964)].

Police Dep't of Chicago v. Mosley, 408 U.S. 92, 95, 33 L. Ed. 2d 212 (1972) (citations

omitted). For this reason, review “of content restrictions must begin with a healthy

respect for the truth that they are the most direct threat to the vitality of First

Amendment rights.” Id.

In addition, the freedom to associate with like-minded people and exchange

ideas, as well as the freedom to express unpopular ideas in a public forum, are

fundamental rights under the First Amendment:

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An individual’s freedom to speak, to worship, and to

petition the government for the redress of grievances could

not be vigorously protected from interference by the State

unless a correlative freedom to engage in group effort

toward those ends were not also guaranteed. . . . [W]e

have long understood as implicit in the right to engage in

activities protected by the First Amendment a

corresponding right to associate with others in pursuit of a

wide variety of political, social, economic, educational,

religious, and cultural ends.

Roberts v. U.S. Jaycees, 468 U.S. 609, 622, 82 L. Ed. 2d 462, 474 (1984) (citations

omitted); Packingham v. North Carolina, 582 U.S. __, __, 198 L. Ed. 2d 273, 279

(2017) (“A fundamental principle of the First Amendment is that all persons have

access to places where they can speak and listen, and then, after reflection, speak and

listen once more.”). Particularly relevant to Defendant’s case: “While in the past

there may have been difficulty in identifying the most important places (in a spatial

sense) for the exchange of views, today the answer is clear. It is cyberspace—the ‘vast

democratic forums of the Internet’ in general, and social media in particular.” Id.

In Alexander v. United States, the court discussed how Watts, the first Supreme

Court opinion recognizing the First Amendment’s “true threat” requirement for anti-

threat statutes, served to limit the expansive reach that federal circuit courts had

given to anti-threat statutes:

Watts represented the Supreme Court’s first construction

of [an anti-threat statute—18 U.S.C. § 871(a)], an endeavor

in which various other federal courts had engaged. Some

of these courts, on whose holdings the majority of [the D.C.

Circuit opinion in Watts] relied, had expanded the concept

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of a “threat” so broadly as to include utterances employing

violent words intended and understood as mere jokes or

political hyperbole. The Supreme Court, however,

admonished that “we must interpret the language

Congress chose ‘against the background of a profound

national commitment to the principle that debate on public

issues should be uninhibited, robust, and wide-open, and

that it may well include vehement, caustic, and sometimes

unpleasantly sharp attacks on government and public

officials.’” Thus, ruled the Court, to support a conviction

under the statute, “the Government [must] prove a true

‘threat.’”

Alexander v. United States, 418 F.2d 1203, 1205 (D.C. Cir. 1969) (footnotes omitted).

However, although Watts mandated than no anti-threat statute could be

constitutionally applied unless its proscription of “threats” was limited to only “true

threats,” the Court left many important questions unanswered. The definition of

“true threat” currently in use comes primarily from Black:

Although the State cannot criminalize constitutionally

protected speech, the First Amendment does not immunize

“true threats.” The Court held in [Black] that under the

First Amendment the State can punish threatening

expression, but only if the “speaker means to communicate

a serious expression of an intent to commit an act of

unlawful violence to a particular individual or group of

individuals.”

Bagdasarian, 652 F.3d at 1116 (citations omitted). A “true threat” as defined in Black

must be determined by looking at the context in which the alleged threat was made.

Id. at 1119 (citation omitted) (“This . . . test requires the fact-finder to ‘look[] at the

entire factual context of [the] statements including: the surrounding events, the

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listeners’ reaction, and whether the words are conditional.’ It is necessary, then, to

determine whether [the defendant’s] statements, considered in their full context,

‘would be interpreted by those to whom the maker communicates the statement as a

serious expression of an intention to inflict bodily harm on or to take the life of [the

person allegedly threatened].’”).

Finally, it is not the defendant, but the government that bears “the burden of

proving that the speech it seeks to prohibit is unprotected.” Illinois ex rel. Madigan

v. Telemar. Assoc., Inc., 538 U.S. 600, 620 n.9, 155 L. Ed. 2d 793, 810 n.9 (2003)

(citations omitted). “Where the First Amendment is implicated, the tie goes to the

speaker, not the censor.” Fed. Election Comm’n v. Wis. Right To Life, Inc., 551 U.S.

449, 474, 168 L. Ed. 2d 329, 349 (2007) (emphasis added) (footnote omitted).

B. Unsettled Issues

Beyond these general principles, there remain a number of issues relevant to

this case that have not yet been decided by North Carolina appellate courts, including

the following:6 (1) Review: Does review of a defendant’s conviction pursuant to an

anti-threat statute require this Court to conduct “independent whole record” review.

If yes, what does that review require. (2) Elements: Does “true threat” constitute

an element of a criminal anti-threat statute, by inference if not expressly included,

6 Some of these issues have been decided by the Supreme Court, but whether state courts, or

even federal circuit courts, are bound by certain “true threat” related decisions of the Supreme Court

is not always clear as application of these principles has not been universal.

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that must be alleged in an indictment, proven beyond a reasonable doubt, and

properly instructed to the jury; and is the requisite “intent,” discussed below, whether

specific, general, or both, also a necessary element of the anti-threat statute. (3)

Intent: Does the First Amendment require the State to prove “objective intent,” i.e.,

that a defendant’s alleged threat would be understood objectively, by a reasonable

person familiar with the context, being all the surrounding circumstances, as an

expression of the defendant’s serious intent to injure or kill and, if so, what is the

proper manner by which to make the “general intent” determination; does the First

Amendment require proof of a defendant’s “subjective intent,” i.e., proof that the

defendant communicated a “true threat” for the purpose of threatening to injure or

kill a person or persons;7 or does the First Amendment require both proof that an

objective “reasonable person” would understand a defendant’s communication in

context as a “true threat” to injure or kill, as well as proof of the defendant’s subjective

intent; that the defendant communicated a “true threat” for the purpose of

threatening a specific person or group. (4) Fact or Law: As argued by the State,

does the trial judge decide whether a defendant’s conduct rose to the level of a “true

threat” as a matter of law; or is that decision generally a question for the jury, or the

trial court acting as trier of fact, to decide in the first instance. (5) Proof of a “True

7 The Supreme Court has held that proof of a specific intent to commit the threatened action

is not required: “The speaker need not actually intend to carry out the threat.” Black, 538 U.S. at

359–60, 155 L. Ed. 2d at 552.

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Threat”: What is sufficient in order for the State to meet its burden of proving a

defendant’s communication was a “true threat,” including (a.) the definition of “true

threat,” (b.) the correct “intent” requirement, and (c.) consideration of the context

within which the alleged “true threat” was made. (6) Instructions: Must the trial

court, contrary to the State’s position, instruct the jury in accordance with First

Amendment “true threat” requirements.

1. Standard of Review

Generally, “‘[u]pon defendant’s motion for dismissal, the question for the Court

is whether there is substantial evidence (1) of each essential element of the offense

charged, or of a lesser offense included therein, and (2) of defendant’s being the

perpetrator of such offense. If so, the motion is properly denied.’” State v. Scott, 356

N.C. 591, 595, 573 S.E.2d 866, 868 (2002) (citation omitted). However, “‘[t]he

standard of review for alleged violations of constitutional rights is de novo.’ Under

the de novo standard, this Court ‘considers the matter anew and freely substitutes its

own judgment for that of the lower tribunal.’” Shackelford, __ N.C. App. at __, 825

S.E.2d at 695 (citations omitted). In addition, the Fourth Circuit has stated:

“Whether a written communication contains either constitutionally protected

‘political hyperbole’ or an unprotected ‘true threat’ is a question of law and fact that

we review de novo.” Bly, 510 F.3d at 457–58 (citing Bose Corp. v. Consumers Union

of U.S., 466 U.S. 485, 506–11, 80 L. Ed. 2d 502, 520–24 (1984)); see also Matter of

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N.D.A., __ N.C. __, __. 833 S.E.2d 768, 772–73 (2019) (citations omitted) (“As the

Supreme Court of the United States has stated, an ‘ultimate finding is a conclusion

of law or at least a determination of a mixed question of law and fact’ and should ‘be

distinguished from the findings of primary, evidentiary, or circumstantial facts.’”).

Our review of issues related to jury instructions is also de novo:

A trial court’s jury instructions are sufficient if they

present the law of the case in such a manner as to leave no

reasonable cause for believing that the jury was misled or

misinformed. A charge must be construed contextually,

and isolated portions of it will not be held prejudicial when

the charge as a whole is correct. When a defendant

requests an instruction which is supported by the evidence

and is a correct statement of the law, the trial court must

give the instruction, at least in substance. Arguments

challenging the trial court’s decisions regarding jury

instructions are reviewed de novo by this Court. A trial

court’s failure to submit a requested instruction to the jury

is harmless unless defendant can show he was prejudiced

thereby.

Desmond v. News & Observer Publ’g Co., __ N.C. App. __, __, 823 S.E.2d 412, 434

(2018) (citation omitted), disc. review allowed, __ N.C. __, 824 S.E.2d 400 (2019).

“[T]he Supreme Court of the United States [has] held that the trial court’s

unconstitutional failure to submit an essential element of the crime to the jury was

subject to harmless error analysis.” State v. Bunch, 363 N.C. 841, 844, 689 S.E.2d

866, 868–69 (2010) (citation omitted). However,

Considering the importance of “safeguarding the jury

guarantee,” the Supreme Court of the United States

requires “a reviewing court [to] conduct a thorough

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examination of the record” before finding the omission

harmless. “If, at the end of that examination, the court

cannot conclude beyond a reasonable doubt that the jury

verdict would have been the same absent the error—for

example, where the defendant [1] contested the omitted

element and [2] raised evidence sufficient to support a

contrary finding—it should not find the error harmless.”

Thus, the harmless error analysis . . . is twofold: (1) if the

element is uncontested and supported by overwhelming

evidence, then the error is harmless, but (2) if the element

is contested and the party seeking retrial has raised

sufficient evidence to support a contrary finding, the error

is not harmless.

Id. at 845, 689 S.E.2d at 869 (citations omitted).

The Supreme Court has “determined that ‘in cases raising First Amendment

issues . . . an appellate court has an obligation to “make an independent examination

of the whole record” in order to make sure that “the judgment does not constitute a

forbidden intrusion on the field of free expression.”’” Milkovich v. Lorain Journal Co.,

497 U.S. 1, 17, 111 L. Ed. 2d 1, 17 (1990) (citing Bose, 466 U.S. at 499, 80 L. Ed. 2d

at 515). “[T]he rule of independent review assigns to judges a constitutional

responsibility that cannot be delegated to the trier of fact, whether the fact[-]finding

function be performed in the particular case by a jury or by a trial judge.” Bose, 466

U.S. at 501, 80 L. Ed. 2d at 516–17. In Watts, the first “true threats” opinion, the

Court conducted an independent review and reversed the jury’s determination that

the defendant had threatened the President, holding that, when viewed in context,

the defendant’s comments did not constitute a “true threat” as a matter of law. Watts,

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394 U.S. at 706–08, 22 L. Ed. 2d at 666–69. This obligation applies to all cases where

liability or guilt relies in part on whether the defendant’s speech falls into one of the

recognized “unprotected” categories, such as “true threats”:

In such cases, the Court has regularly conducted an

independent review of the record both to be sure that the

speech in question actually falls within the unprotected

category and to confine the perimeters of any unprotected

category within acceptably narrow limits in an effort to

ensure that protected expression will not be inhibited.

Bose, 466 U.S. at 505, 80 L. Ed. 2d at 519 (emphasis added); see also id. at 505–08,

80 L. Ed. 2d at 521–22; Miller v. Fenton, 474 U.S. 104, 114, 88 L. Ed. 2d 405, 413

(1985); Hurley v. Irish-Am. Gay Grp., 515 U.S. 557, 567–68, 132 L. Ed. 2d 487, 499–

500 (1995). It is the duty of the reviewing court to “independently decide whether the

evidence in the record is sufficient to cross the constitutional threshold[.]” Bose, 466

U.S. at 511, 80 L. Ed. 2d at 523; see also id. at 503–10, 80 L. Ed. 2d 502 at 518–22.

Federal circuit courts have generally followed the Bose independent review standard:

Following Bose, this court, like other [federal] courts of

appeal, has extended the independent review rule well

beyond defamation claims. We have stated that “where the

trial court is called upon to resolve a number of mixed

fact/law matters which implicate core First Amendment

concerns, our review, at least on these matters, is plenary.”

Veilleux v. Nat’l Broad. Co., 206 F.3d 92, 106–07 (1st Cir. 2000) (citation omitted);

Bly, 510 F.3d at 457–58 (4th Cir. 2007) (citing Bose, 466 U.S. at 506–11, 80 L. Ed. 2d

at 520–24) (“Whether a written communication contains either constitutionally

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protected ‘political hyperbole’ or an unprotected ‘true threat’ is a question of law and

fact that we review de novo.”); Nor-West Cable Commc’ns v. City of St. Paul, 924 F.2d

741, 746 (8th Cir. 1991) (citations omitted) (“Bose clearly holds that certain first

amendment issues in addition to ‘actual malice’ must be reviewed de novo on appeal.

See Bose, 466 U.S. at 504–08 (requiring independent review as to whether speech

falls in [an] ‘unprotected category’ such as fighting words, incitement of lawless

action, obscenity, and child pornography).”); see also Harte-Hanks Comm’ns, Inc. v.

Connaughton, 491 U.S. 657, 688, 105 L. Ed. 2d 562, 589 (1989); Edwards v. South

Carolina, 372 U.S. 229, 235, 9 L. Ed. 2d 697, 701–02 (1963).8

This Court has also adopted independent whole record review when reviewing

a jury’s determination that a defendant’s speech fell into one of the “unprotected”

categories: defamation. Desmond, __ N.C. App. at __, 823 S.E.2d at 422–23. This

Court in Desmond cited extensively from Harte-Hanks:

[T]he question whether the evidence in the record in a

defamation case is sufficient to support a finding of actual

malice is a question of law. This rule is not simply

premised on common-law tradition, but on the unique

character of the interest protected by the actual malice

standard. Our profound national commitment to the free

exchange of ideas, as enshrined in the First Amendment,

demands that the law of libel carve out an area of breathing

space so that protected speech is not discouraged. The

meaning of terms such as “actual malice”—and, more

particularly, “reckless disregard”—however, is not readily

8 However, despite the seemingly clear language used by the Supreme Court in Bose and other

opinions, not all federal circuit courts apply independent review to cases involving “true threats” or

other categories of “unprotected” speech. See Wheeler, 776 F.3d at 742.

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captured in one infallible definition. Rather, only through

the course of case-by-case adjudication can we give content

to these otherwise elusive constitutional standards.

Moreover, such elucidation is particularly important in the

area of free speech for precisely the same reason that the

actual malice standard is itself necessary. Uncertainty as

to the scope of the constitutional protection can only

dissuade protected speech—the more elusive the standard,

the less protection it affords. Most fundamentally, the rule

is premised on the recognition that judges, as expositors of

the Constitution, have a duty to independently decide

whether the evidence in the record is sufficient to cross the

constitutional threshold that bars the entry of any

judgment that is not supported by clear and convincing

proof of “actual malice.”

Id. (quoting Harte-Hanks, 491 U.S. at 685–89, 105 L. Ed. 2d at 587–89 (citations,

quotation marks, and brackets omitted)). However, “credibility determinations are

reviewed under the clearly-erroneous standard, because the trier of fact has had the

‘opportunity to observe the demeanor of the witnesses[.]’” Harte-Hanks, 491 U.S. at

688, 105 L. Ed. 2d at 589 (citation omitted). Independent review is certainly no less

of a necessity for protecting an individual’s First Amendment rights in criminal cases

than it is in civil cases, and it has been adopted by a number of state appellate courts

for review of anti-threat convictions:

Whether language constitutes a true threat is an issue of

fact for the trier of fact in the first instance. However, . . . a

rule of independent appellate review applies in First

Amendment speech cases. An appellate court “must ‘make

an independent examination of the whole record, . . .’ so as

to assure [itself] that the judgment does not constitute a

forbidden intrusion on the field of free expression.”

. . . Thus, whether a statement constitutes a true threat is

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a matter subject to independent review.

Washington v. Johnston, 127 P.3d 707, 712–13 (Wash. 2006) (alteration in original)

(citations omitted); see also, e.g., Connecticut v. Krijger, 97 A.3d 946, 955 (Conn. 2014).

In light of the weight of precedent in the federal courts, other state courts, and

this Court’s opinion in Desmond, we hold that this Court should apply independent

whole record review, as set forth in Bose, Harte-Hanks, and Desmond, whenever a

defendant’s conviction is based in part on a determination that the State met its

burden of proving the existence of a “true threat.”

2. Elements

“Much turns on the determination that a fact is an element of an offense,

. . . given that elements must be charged in the indictment, submitted to a jury, and

proven by the Government beyond a reasonable doubt.” Jones v. United States, 526

U.S. 227, 232, 143 L. Ed. 2d 311, 319 (1999) (citations omitted); see also State v. Guice,

141 N.C. App. 177, 189, 541 S.E.2d 474, 482 (2000), modified on reh’g, 151 N.C. App.

293, 564 S.E.2d 925 (2002). It appears that certain issues are occurring at the trial

court level in part because the relevant First Amendment requirements are not

treated as essential elements of the underlying anti-threat statutes. In this case, the

State repeatedly argued that it did not have to prove a “true threat” in order to convict

Defendant under N.C.G.S. § 14-16.7(a), and that the trial court should not instruct

the jury in accordance with “true threat” jurisprudence. The State argued that

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N.C.G.S. § 14-16.7(a) contained only three elements: “The pattern jury instructions

are clear that there are three and only three elements to this charge. Now with

regards to the threat, the only element is that the defendant knowingly and willfully

made a threat to kill the victim.” The State further argued: “I get that [D]efendant

is raising First Amendment objections to that statute as it’s written, but I think the

proper venue to take that up would be if upon conviction to take that up on appeal.”

“[I]t is the legislature’s intent . . . that there be no requirement of proof to show that

the threat was made in a manner and under circumstances which would cause a

reasonable person to believe it is likely to be carried out.” “[M]aking any threats

towards . . . court officials . . . is unacceptable to the legislature, regardless of whether

they were made in a manner that a reasonable person would believe they would be

carried out.” (Emphasis added). The trial court appeared to agree with the State.

It is well established that a defendant cannot receive a fair, i.e., constitutional,

trial, unless all essential elements of the crime charged are “submitted to the jury

and found beyond a reasonable doubt.” Alleyne v. United States, 570 U.S. 99, 116,

186 L. Ed. 2d 314, 329 (2013); Apprendi v. New Jersey, 530 U.S. 466, 476–77, 147 L.

Ed. 2d 435, 447 (2000); State v. Rankin, __ N.C. __, __, 821 S.E.2d 787, 790 (2018).

“The substance and scope of this right depend upon the proper designation of the facts

that are elements of the crime.” Alleyne, 570 U.S. at 104–05, 186 L. Ed. 2d at 322.

As noted by the Court in Alleyne: “If a fact [is] by law essential to the penalty, it [is]

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an element of the offense.” Id. at 109, 186 L. Ed. 2d at 325 (emphasis added) (citation

omitted). This definition of an “element” was recently reaffirmed by our Supreme

Court:

[There is] well-established binding precedent from this

Court holding that the complete and definite description of

a crime is one in which each essential element necessary to

constitute that crime is included. [State v. Johnson, 229

N.C. 701, 706, 51 S.E.2d 186, 190 (1949)] (observing that

the State carries the burden of establishing the “essentials

of the legal definition of the offense itself”).

Rankin, __ N.C. at __, 821 S.E.2d at 793 (emphasis added) (citations omitted). On

appeal, the State recognizes that Defendant’s comments were protected by the First

Amendment unless they were “true threats.” We agree, and because proof of a “true

threat” is essential to prosecution pursuant to N.C.G.S. § 14-16.7(a), “true threat”

must be included in the definition of the crime of threatening to kill a court officer.

Further, “true threat” must be included as an “essential element” of the statute. Id.;

Alleyne, 570 U.S. at 109, 186 L. Ed. 2d at 325.

We hold that “true threat” must be included as an essential element of the

statute based upon the following: N.C.G.S. § 14-16.7(a) criminalizes, in part, the

communication of “threats” to kill certain classifications of people. Id. The First

Amendment requires that an anti-threat statute such as N.C.G.S. § 14-16.7(a) be

construed so that the word “threat” is read as “true threat,” and that the State prove

a “true threat,” to the jury or trier of fact, beyond a reasonable doubt. See Watts, 394

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U.S. at 708, 22 L. Ed. 2d at 667; United States v. Patillo, 431 F.2d 293, 295 (4th Cir.

1970), adhered to, 438 F.2d 13 (4th Cir. 1971). Therefore, “true threat” must be

incorporated into the definition of N.C.G.S. § 14-16.7(a) if the statute is to be held

constitutional. See Alleyne, 570 U.S. at 109, 186 L. Ed. 2d at 325; Rankin, __ N.C. at

__, 821 S.E.2d at 793–94 (emphasizing that the definition of a crime includes

descriptions of what constitutes the crime as well as what does not constitute the

crime and that, “if . . . words, though in the form of a proviso or an exception, are in

fact, and by correct interpretation, but a part of the definition and description of the

offense, they” constitute an essential element of the crime).

Although the Supreme Court has not expressly stated that “true threat” is an

element of anti-threat statutes, it has consistently treated “true threat,” and the

requisite intent, as essential elements of any constitutional anti-threat statute. The

Court has required the jury to be instructed on First Amendment elements, implicitly

in the case of “true threat,” but expressly for other categories of “unprotected” speech.

See Watts, 394 U.S. at 708, 22 L. Ed. 2d at 667 (“[W]hatever the ‘willfullness’

requirement implies, the statute initially requires the Government to prove a true

‘threat.’”); see also Elonis v. United States, 575 U.S. 723, __, 192 L. Ed. 2d 1, 23–4

(2015) (Thomas, J., dissenting) (citations omitted) (“Because § 875(c) criminalizes

speech, the First Amendment requires that the term ‘threat’ be limited to a narrow

class of historically unprotected communications called ‘true threats.’ . . . There is

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thus no dispute that, at a minimum, § 875(c) requires an objective showing: The

communication must be one that ‘a reasonable observer would construe as a true

threat to another.’”); Black, 538 U.S. at 365, 155 L. Ed. 2d at 556 (“As interpreted by

the jury instruction, [which did not require the jury to find a true threat,] the [statute]

chills constitutionally protected political speech because of the possibility that [the

government] will prosecute—and potentially convict—somebody engaging only in

lawful political speech at the core of what the First Amendment is designed to

protect.”).

This is in accord with the Supreme Court’s treatment of First Amendment

requirements for the other categories of “unprotected speech.” See, e.g., Miller v.

California, 413 U.S. 15, 21, 37 L. Ed. 2d 419, 428–29 (1973) (discussing the required

elements to prove “obscenity” that falls outside of First Amendment protections);

N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279–80, 11 L. Ed. 2d 686, 706 (1964)

(imposing “actual malice” as an element in defamation actions brought by public

officials: “The constitutional guarantees require . . . a federal rule that prohibits a

public official from recovering damages for a defamatory falsehood relating to his

official conduct unless he proves that the statement was made with ‘actual malice’”);

Yates v. United States, 354 U.S. 298, 324–25, 1 L. Ed. 2d 1356, 1378–79 (1957)

(holding the defendant’s conviction violated his First Amendment rights because

“[t]he jury was never told that the Smith Act does not denounce advocacy in the sense

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of preaching abstractly the forcible overthrow of the Government[,]” and “the urging

of action for forcible overthrow [was] a necessary element of the proscribed advocacy”),

overruled on other grounds by Burks v. United States, 437 U.S. 1, 57 L. Ed. 2d 1

(1978); Bose, 466 U.S. at 506–07, 80 L. Ed. 2d at 520–21 (citation omitted) (stating,

in a prosecution for obscenity, “questions of what appeals to ‘prurient interest’ and

what is ‘patently offensive’ under the [First Amendment] community standard

obscenity test are ‘essentially questions of fact’” that must be proven to the jury);

Ginsberg v. New York, 390 U.S. 629, 643, 20 L. Ed. 2d 195, 206 (1968).

In addition, the Supreme Court has held that placing the burden on a

defendant to prove his speech was protected, rather than placing the burden on the

government to prove the defendant’s speech was “unprotected,” is unconstitutional:

[W]here particular speech falls close to the line separating

the lawful and the unlawful, the possibility of mistaken

factfinding—inherent in all litigation—will create the

danger that the legitimate utterance will be penalized. The

man who knows that he must bring forth proof and

persuade another of the lawfulness of his conduct

necessarily must steer far wider of the unlawful zone than

if the State must bear these burdens.

Speiser v. Randall, 357 U.S. 513, 526, 2 L. Ed. 2d 1460, 1473 (1958); id. (citation

omitted) (“Where the transcendent value of speech is involved, due process certainly

requires . . . that the State bear the burden . . . to show that the appellants engaged

in criminal speech.”); see also United States v. Turner, 720 F.3d 411, 419 (2d Cir. 2013)

(“the evidence at trial was more than sufficient to permit a reasonable jury to find

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each of the elements of [the anti-threat statute]—including the requirement of a true

threat—beyond a reasonable doubt”); United States v. Pinson, 542 F.3d 822, 832 (10th

Cir. 2008) (“The burden is on the prosecution to show that the defendant understood

and meant his words as a [true] threat, and not as a joke, warning, or hyperbolic

political argument.”); United States v. Gilbert, 813 F.2d 1523, 1530 (9th Cir. 1987)

(“The government bears the ultimate burden of proving that [the defendant’s] actions

were taken with the requisite intent to place them into [the] category [of a ‘true

threat’].”); United States v. Hoffman, 806 F.2d 703, 708 (7th Cir. 1986).

Our holding is in line with most jurisdictions; in fact, we are unaware of any

jurisdiction that has not treated “true threat” as an essential element of an anti-

threat statute. Like every other federal jurisdiction, the Fourth Circuit recognized

that in Black, the Supreme Court, in defining “true threat,” “was defining the

necessary elements of a threat crime in the context of a criminal statute punishing

intimidation.” White I, 670 F.3d at 509. “In deciding Watts, the Court recognized two

major elements in the offense created by Congress in 18 U.S.C. Section 871(a). The

first is that there be proved ‘a true “threat,”’ and the second is that the threat be made

‘knowingly and willfully[.]’” Patillo, 431 F.2d at 295 (emphasis added) (citations

omitted); see also, e.g., United States v. Houston, 792 F.3d 663, 668–69 (6th Cir. 2015);

United States v. Lockhart, 382 F.3d 447, 449–50 (4th Cir. 2004); United States v.

Francis, 164 F.3d 120, 123 (2d Cir. 1999).

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Further, both Supreme Court and federal circuit court precedent recognizes an

intent requirement must also be read into an anti-threat statute. See New York v.

Ferber, 458 U.S. 747, 765, 73 L. Ed. 2d 1113, 1127 (1982) (citations omitted) (“As with

obscenity laws, criminal responsibility [for child pornography] may not be imposed

without some element of scienter on the part of the defendant.”); Morissette v. United

States, 342 U.S. 246, 263, 96 L. Ed. 288, 300 (1952) (emphasis added) (holding that

“mere omission from [the statute] of any mention of intent will not be construed as

eliminating that element from the crimes denounced”); Houston, 792 F.3d at 667;

Bagdasarian, 652 F.3d at 1118 (emphasis added) (citation omitted) (“Black ‘affirmed

our own dictum—not always adhered to in our cases—that “the element of intent [is]

the determinative factor separating protected expression from unprotected criminal

behavior.”’”); United States v. Cassel, 408 F.3d 622, 634 (9th Cir. 2005) (emphasis

added) (“Having held that intent to threaten is a constitutionally necessary element of

a statute punishing threats, we do not hesitate to construe 18 U.S.C. § 1860 to require

such intent.”); Francis, 164 F.3d at 121 (“Although the statute does not mention

intent or willfulness, intent is of course an element of the crime.”).9

9 The “knowingly and willfully” language in N.C.G.S. § 14-16.7(a) imposes an element of intent,

but in this case the State and the trial court interpreted “knowingly and willfully” as meaning

Defendant understood the words he wrote and intentionally communicated them by posting them on

Facebook; and that Defendant knew D.A. Welch was a court officer. Defendant did not object on the

basis that the statute itself should be read as requiring that Defendant intended his Facebook posts

to threaten anyone.

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When a criminal statute is written without expressly including, as elements,

the requirements of the First Amendment, the statute must be construed and applied

at trial with the First Amendment requirements included as essential elements of

the statutory crime. This principle is well established in North Carolina. See

Summrell, 282 N.C. at 167, 192 S.E.2d at 575 (citation omitted) (“a statute which

defines proscribed activity so broadly that it encompasses constitutionally protected

speech[] cannot be upheld in the absence of authoritative judicial limitations”). “[I]t

is well settled . . . that a statute will not be construed so as to raise a question of its

constitutionality ‘if a different construction, which will avoid the question of

constitutionality, is reasonable.’” Id. at 168, 192 S.E.2d at 576 (citation omitted). The

trial court may often construe a statute otherwise unconstitutional on its face by

instructing the jury on the complete definition of the crime, that is, a definition that

includes the statutory elements as well as constitutionally required elements. In

Summrell, the trial court cured the First Amendment issues inherent in the

underlying statutes, because it “construed [the statutes] to prohibit only [‘fighting

words’] and conduct likely to provoke ordinary men to violence. [The trial court]

deleted the [unconstitutional language] and left undisturbed the statutes’

proscription against acts and language calculated to bring on a breach of the peace.”

Id. at 167–68, 192 S.E.2d at 575–76; see also State v. Clark, 22 N.C. App. 81, 87, 206

S.E.2d 252, 256 (1974) (emphasis added) (“Defendant also argues that section (a)(2)

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of G.S. § 14-288.4, as amended in 1971, is unconstitutionally vague and overbroad.

This argument has no application to the present case because the trial judge restricted

the jury's consideration of what constituted disorderly conduct to sections (a)(3), (a)(4),

and (a)(5)b. of G.S. § 14-288.4 (1971). Defendant advances no argument that these

sections are unconstitutional.”); State v. Orange, 22 N.C. App. 220, 222–23, 206

S.E.2d 377, 379 (1974).

In order to constitutionally determine a communication falls into the “true

threat” “unprotected” category of speech, the requirements imposed by the First

Amendment must be included as essential elements of the underlying crime charged.

Further, the “intent” required to prove “true threat” in accordance with the First

Amendment is also an element of the underlying crime, and must be proven by the

State, to the jury, beyond a reasonable doubt. We therefore hold that “true threat,”

and the proper intent requirements, are essential elements of N.C.G.S. § 14-16.7(a)

and must be treated as such by the trial court. We discuss the appropriate intent

requirements next.

3. Intent

Congress enacted the anti-threat statute that would become 18 U.S.C. § 871(a)

on 14 February 1917. See Ragansky v. United States, 253 F. 643, 644 (7th Cir. 1918).

18 U.S.C. § 871(a) states in part:

Whoever knowingly and willfully deposits for conveyance

in the mail . . . any . . . writing . . . containing any threat to

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take the life of . . . or to inflict bodily harm upon the

President of the United States, . . . or knowingly and

willfully otherwise makes any such threat against the

President, . . . shall be fined under this title or imprisoned

not more than five years, or both.

18 U.S.C. § 871(a). Shortly thereafter, federal courts began interpreting this statute

and the intent requirement for 18 U.S.C. § 871(a) and other anti-threat statutes. The

intent requirement for anti-threat statutes was primarily taken from the Seventh

Circuit’s 1918 opinion in Ragansky. The “Ragansky test of intention” was adopted by

the majority of federal jurisdictions to determine the element of “willfulness” in

prosecutions under 18 U.S.C. § 871(a). United States v. Patillo, 438 F.2d 13, 14 (4th

Cir. 1971) (Patillo II). The Supreme Court did not address any of the issues raised

by 18 U.S.C. § 871(a) and other anti-threat statutes until Watts, where the Court,

referencing Ragansky specifically, acknowledged that there was disagreement in the

lower courts “over whether or not the ‘willfullness’ requirement of [18 U.S.C. § 871(a)]

implied that a defendant must have intended to carry out his ‘threat.’” Watts, 394

U.S. at 707, 22 L. Ed. 2d at 667. The defendant in Ragansky was convicted of

“knowingly and willfully making threats to take the life of the President” pursuant

to 18 U.S.C. § 871. Ragansky, 253 F. at 644. The defendant had made the statements:

“I can make bombs and I will make bombs and blow up the

President”; . . . “We ought to make the biggest bomb in the

world and take it down to the White House and put it on

the dome and blow up President Wilson and all the rest of

the crooks, and get President Wilson and all of the rest of

the crooks and blow it up” [and;] “I would like to make a

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bomb big enough to blow up the Capitol and President and

all the Senators and everybody in it.”

Id. at 644. The Ragansky court stated: “[I]t appears . . . that ‘there was a claim by

this defendant and testimony in corroboration of his claim that he was joking, that

he was not in earnest, that he did not intend to kill him.’” Id. The trial court

instructed the jury that the defendant’s “‘claim that the language was used as a joke,

in fun,’ is not a defense.” Id. On appeal, the Seventh Circuit defined “willfully” and

“knowingly,” and articulated a standard for intent in anti-threat statutes:

It was not claimed that every one present understood that

he was joking, or that he intended them so to

understand;[10] the claim appears to have been that

defendant had no intention to carry out his threat, and

that, therefore, it was a joke; the instruction read in the

light of the entire charge must be so construed, and in our

judgment it was correct.

A threat is knowingly made, if the maker of it comprehends

the meaning of the words uttered by him; a foreigner,

ignorant of the English language, repeating these same

words without knowledge of their meaning, may not

knowingly have made a threat.

And a threat is willfully made, if in addition to

comprehending the meaning of his words, the maker

voluntarily and intentionally utters them as the

declaration of an apparent determination to carry them into

execution.

Defendant, while conceding that an intention actually to

10 Even in Ragansky the court is considering the defendant’s intent, i.e., what effect the

defendant intended his statements to have on his audience. The implication from the inclusion of what

the defendant did not claim at trial is that, had there been evidence he intended his statements to be

understood as a joke, the outcome may have been different.

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carry out the threat or the President’s knowledge of the

threat is not essential, contends that the language must be

used with an evil or malicious intent to express a sentiment

to be impressed upon the minds of persons through which

it might create a sentiment of hostility to the security of

the President, “that willfully implies an evil purpose—legal

malice.”

[The defendant’s] present contention cannot be sustained,

if by evil purpose or legal malice, more is meant than an

intention to give utterance to words which, to defendant’s

knowledge, were in form and would naturally be

understood by the hearers as being a threat; that is, the

expression of a determination, whether actual or only

pretended, to menace the President’s safety.

While under some circumstances, the word “willfully” in

penal statutes means not merely voluntarily, but with a

bad purpose, nothing in the text, context, or history of this

legislation indicates the materiality of the hidden intent or

purpose of one who, in the presence of others, voluntarily

uses language known by him to be in form such a threat,

and who thus, to some extent endangers the President’s

life.

Id. at 644–45 (citations omitted) (emphasis added). Ragansky appears to have

required not only that a defendant knew the meaning of the words conveyed, and that

the defendant willfully conveyed them, but that the words conveyed were “known by

him” to be “in form [that] would naturally be understood by the hearers as being a

threat; that is, the expression of a determination, whether actual or only pretended,

to menace the President’s safety.” Id. at 645.

Despite this apparent requirement in Ragansky that a defendant subjectively

know the alleged threat would “naturally be understood” as a threat, id., the

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“Ragansky test” was interpreted in subsequent opinions by the majority of federal

districts to contain no subjective intent requirement, and thus became a pure “general

intent” test. See United States v. Darby, 37 F.3d 1059, 1066 (4th Cir. 1994) (citation

omitted) (“‘[s]ection 18 U.S.C. § 875(c) does not require specific intent in regard to the

threat element of the offense, but only general intent’”). The general intent test

requires “only that the defendant knowingly transmitted the . . . communication[,]”

id. at 1064 (citations omitted), and that “‘there is substantial evidence that tends to

show beyond a reasonable doubt that an ordinary, reasonable recipient who is

familiar with the context of the [communication] would interpret it as a threat of

injury[.]’” Id. at 1065 (citation omitted).11 This is a negligence standard:

Courts then ask . . . whether a reasonable person equipped

with that knowledge, not the actual defendant, would have

recognized the harmfulness of his conduct. That is

precisely the Government's position here: [The defendant]

can be convicted . . . if he himself knew the contents and

context of his posts, and a reasonable person would have

recognized that the posts would be read as genuine threats.

That is a negligence standard.

Elonis, 575 U.S. at __, 192 L. Ed. 2d at 15–6. The “general intent” negligence

standards applied in federal and state jurisdictions do not include the apparent

11 The Fourth Circuit employs a “reasonable recipient” of the alleged threat “general intent”

standard, which is in line with Ragansky, but this version of the general intent standard is not

universally accepted in the federal circuits. Furthermore, the Fourth Circuit occasionally applies the

specific intent standard set forth in Patillo, 431 F.2d 293 and Patillo II, 438 F.2d 13. See Lockhart,

382 F.3d at 449–50.

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requirement in Ragansky that the defendant must have had “an intention” to

communicate “words which, to defendant’s knowledge, were in form and would

naturally be understood by the hearers as being a threat[.]” Ragansky, 253 F. at 645

(emphasis added).12

Our reading of Ragansky is bolstered by the Ragansky court’s reliance on

United States v. Stickrath, 242 F. 151 (S.D. Ohio 1917). The court in Stickrath stated:

“Doing a thing knowingly and willfully implies, not only a knowledge of the thing, but

a determination with a bad intent to do it. Felton v. U.S., 96 U.S. 699; Potter v. U.S.,

155 U.S. 438, 446.” Stickrath, 242 F. at 154 (citations omitted). The court further

explained:

As used in the statute [the terms “knowingly” and

“willfully”] are intended to signify that the defendant, at

the time of making the threat charged against him, must

have known what he was doing, and, with such knowledge,

proceeded in violation of law to make [the threat]. They

are used in contradistinction to “ignorantly” and

“unintentionally.” The offense denounced by the statute is

completed at the instant the unlawful threat is knowingly

and willfully made. It is not the execution of such threat,

or (as claimed by defendant) a continuing intent to execute

it, that constitutes the offense, but the making of it

knowingly and willfully. If it be thus made, the subsequent

abandonment of the bad intent with which it was made does

not obliterate the crime.

12 Also: “[O]ne who, in the presence of others, voluntarily uses language known by him to be

in form . . . a threat[,]” i.e., “the expression of a determination, whether actual or only pretended, to

menace the President’s safety[,]” may be prosecuted under the statute. Ragansky, 253 F. at 645

(citation omitted) (emphasis added).

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Id. (emphasis added). Pursuant to the holding in Stickrath, a defendant had to “know

what he was doing,” i.e., making a threat, and “with such knowledge, proceed in

violation of law to make it.” Id. Thus, the holding in Stickrath appears to require

that the defendant had “the bad intent” to carry out the threat at the time the threat

was made, but once the defendant had made the threat with intent to carry it out,

the crime was complete, and the defendant’s subsequent abandonment of the bad

intent to carry out the threat was no defense. Id. Therefore, though Ragansky cited

Stickrath in support of its holding, Ragansky actually contradicts Stickrath’s

statement that “[d]oing a thing knowingly and willfully implies, not only a knowledge

of the thing, but a determination with a bad intent to do it.” Id. The logical

implication from Stickrath is that an intent to execute the alleged threat had to exist

at the time it was made. Id. Ragansky abandoned the Stickrath specific intent to

carry out the threat element, but maintained a specific intent element requiring proof

that a defendant had “an intention to give utterance to words which, to defendant's

knowledge, were in form and would naturally be understood by the hearers as being

a threat[.]” Ragansky, 253 F. at 645.

It was these intent elements that were mentioned in Watts. In the case of

Watts, the defendant was convicted under 18 U.S.C. § 871 of knowingly and willfully

making a threat to kill the President. Watts v. United States, 402 F.2d 676, 677 (D.C.

Cir. 1968) (“Watts I”), rev’d, 394 U.S. 705, 22 L. Ed. 2d 664 (1969). The defendant’s

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appeal was rejected by the D.C. Circuit Court of Appeals, which affirmed the

following jury instruction: “‘It is the making of the threat, not the intent to carry it

out, that violates the law.’” Id. at 678. Judge Wright dissented in Watts I, thoroughly

reviewing the legislative history of the statute and its subsequent treatment by

federal courts. Id. at 686–91 (Wright, J., dissenting). Judge Wright stated: “Where

statutes impinge upon protected speech, statutory provisions governing intent will be

read to require specific intent.” Id. at 691 (citations omitted).

In Watts, the Supreme Court reversed the circuit court’s Watts I opinion and

specifically cited Judge Wright’s dissent as it seriously questioned the

constitutionality of the Ragansky test:

Some early cases [such as Ragansky] found the willfullness

requirement met if the speaker voluntarily uttered the

charged words with “an apparent determination to carry

them into execution.” The majority below seemed to agree.

Perhaps this interpretation is correct, although we have

grave doubts about it. See the dissenting opinion below,

[Watts I], 402 F.2d at 686–93 (Wright, J.).

Watts, 394 U.S. at 707–08, 22 L. Ed. 2d at 667 (emphasis added) (some citations

omitted).

Despite the Court’s apparent agreement, at least in part, with Judge Wright’s

dissent, and its stated “grave doubts” that the Ragansky standard could survive First

Amendment analysis, the Court did not answer the question of whether the First

Amendment requires a specific, as well as general, intent standard. The Court did,

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however, make clear that the First Amendment does not permit prosecution of every

communication that could be considered threatening: “[A] statute such as this one,

which makes criminal a form of pure speech, must be interpreted with the commands

of the First Amendment clearly in mind. What is a threat must be distinguished from

what is constitutionally protected speech.” Watts, 394 U.S. at 707, 22 L. Ed. 2d at

667. The Court held: “[W]hatever the ‘willfullness’ requirement implies, the statute

initially requires the Government to prove a true ‘threat.’ We do not believe that the

kind of political hyperbole indulged in by [the defendant] fits within that statutory

term.” Id. at 708, 22 L. Ed. 2d at 667. This holding is the genesis of the “true threat”

requirement.

The result of the Court’s decision not to decide the intent issue was that most

federal circuits maintained the status quo. Although most circuits continued to apply

a general intent standard after Watts, in United States v. Patillo the Fourth Circuit

responded to Watts by essentially adopting the standard set forth in Judge Wright’s

dissent in Watts I: “In deciding Watts, the [Supreme] Court recognized two major

elements in the offense created by Congress in 18 U.S.C. Section 871(a). The first is

that there be proved a true ‘threat,’ and the second is that the threat be made

‘knowingly and willfully[.]’” Patillo, 431 F.2d at 295. In Patillo, the Fourth Circuit

held the defendant’s statements were “true threats,” then stated: “We must next

determine whether the trier of fact properly found that those threats were uttered

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with the degree of willfulness sufficient for conviction under” the anti-threat statute.

Id. at 296. The Patillo court further stated: “Watts [] does not resolve a long term

controversy over whether ‘willfulness’ means ‘that a defendant must have intended

to carry out his ‘threat[,]’” but noted the Supreme Court had “grave doubts” that the

statute could be constitutionally applied without a specific intent requirement. Id.

(citation omitted). The court in Patillo determined the First Amendment required a

defendant’s intent to be something more than that set forth in the Ragansky

standard:

We think that many of the courts that construed Section

871(a) prior to Watts departed “from the plain meaning of

words . . . in search of an intention which the words

themselves did not suggest,” with pernicious results.

. . . The interpretation of “knowingly and willfully” alluded

to by the Supreme Court in Watts was first stated in

[Ragansky:]

A threat is knowingly made, if the maker of it

comprehends the meaning of the words uttered by him.

. . . And a threat is willfully made, if in addition to

comprehending the meaning of his words, the maker

voluntarily and intentionally utters them as the

declaration of an apparent determination to carry them

into execution.

This language in Ragansky was part and parcel of a

holding, now discredited by Watts, that a statement made

in jest falls within the ambit of Section 871(a).

The Ragansky interpretation of “willfully and knowingly”

is not in keeping with the meaning traditionally accorded

to those words when found in criminal statutes. “The word

[willfully] often denotes an act which is intentional, or

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knowing, or voluntary, as distinguished from accidental.

But when used in a criminal statute it generally means an

act done with a bad purpose. . . .” Ragansky’s version of the

willfulness requirement demands only an “apparent

determination,” expressed by the words themselves, to

perpetrate the act threatened. We believe that a “bad

purpose” assumes even more than its usual importance in

a criminal prosecution based upon the bare utterance of

words. Americans, nurtured upon the concept of free

speech, are not accustomed to controlling their tongues to

avoid criminal indictment.

Id. at 297 (citations omitted). The court concluded: “We hold that where, as in [this]

case, a true threat against the person of the President is uttered without

communication to the President intended, the threat can form a basis for conviction

under the terms of Section 871(a) only if made with a present intention to do injury to

the President.” Id. at 297–98 (emphasis added) (footnote omitted). The Fourth

Circuit reconsidered Patillo en banc because: “It [was] urged upon us in the

[government’s] petition that the Supreme Court’s ‘grave doubts,’ [stated in Watts,] as

to the Ragansky test of intention must now have been dispelled by two recent

decisions from the Second and Ninth Circuits.” Patillo II, 438 F.2d at 14 (citations

omitted). Patillo II reviewed the “two recent decisions,” but reasoned:

[F]or the reasons stated in the majority opinion of the

[Patillo] panel, we reject the Ragansky test of intention.

We think that an essential element of guilt is a present

intention either to injure the President, or incite others to

injure him[.] Much of what we say here is dicta justified,

we think, by apparent misunderstanding of our prior panel

decision.

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Id. at 16 (citation omitted). Although the Fourth Circuit now appears to apply a

general intent standard when reviewing anti-threat statutes, see Darby, 37 F.3d at

1066, Patillo and Patillo II have been cited by the Fourth Circuit as recently as 2004

and have not been expressly overruled. See Lockhart, 382 F.3d at 449–50; United

States v. Cooper, 865 F.2d 83, 85 (4th Cir. 1989) (specific intent requirement of Patillo

was met in prosecution under 18 U.S.C. § 878 because evidence sufficient for jury to

determine the defendant “had a present intention to shoot Gandhi”).

The Supreme Court’s next case involving “true threats” was Rogers v. United

States, 422 U.S. 35, 45 L. Ed. 2d 1 (1975). However, the Court again resolved the

case without addressing the issue of intent. Id. at 40–41, 45 L. Ed. 2d at 7. Justice

Marshall wrote a concurring opinion in Rogers, which Justice Douglas joined, stating

in part:

The District Court and the Court of Appeals adopted what

has been termed the “objective” construction of the [anti-

threat] statute. This interpretation of [section] 871

originated with the early case of Ragansky, and it has been

adopted by a majority of the Courts of Appeals, even

though this Court has expressed “grave doubts” as to its

correctness. As applied in Ragansky and later cases, this

construction would support the conviction of anyone

making a statement that would reasonably be understood

as a threat, as long as the defendant intended to make the

statement and knew the meaning of the words used.

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Id. at 43, 45 L. Ed. 2d at 8 (Marshall, J., concurring) (footnotes and citations

omitted).13 Justice Marshall stated: “In my view, this construction of [section] 871 is

too broad.” Id. at 44, 45 L. Ed. 2d at 9. “In Watts, [the Court] observed that giving

[section] 871 an expansive construction would create a substantial risk that crude,

but constitutionally protected, speech might be criminalized.” Id. Justice Marshall

further stated: “Both the legislative history and the purposes of the statute are

inconsistent with the ‘objective’ construction of [section] 871 and suggest that a

narrower view of the statute is proper.” Id. Justice Marshall concluded: “I would

therefore interpret [section] 871 to require proof that the speaker intended his

statement to be taken as a threat, even if he had no intention of actually carrying it

out.” Id. at 48, 45 L. Ed. 2d at 11.

Individual justices have continued to express their beliefs that the First

Amendment requires a specific intent as well as a general intent. See, in

chronological order, Abrams v. United States, 250 U.S. 616, 627, 63 L. Ed. 1173, 1179

(1919) (Holmes, J., dissenting) (“[W]hen words are used exactly, a deed is not done

with intent to produce a consequence unless that consequence is the aim of the deed.

It may be obvious, and obvious to the actor, that the consequence will follow, and he

may be liable for it even if he regrets it, but he does not do the act with intent to

produce it unless the aim to produce it is the proximate motive of the specific act,

13 As discussed above, it is not clear that the interpretation of Ragansky in subsequent opinions

correctly states the standard set forth therein.

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although there may be some deeper motive behind.”); Watts, 394 U.S. at 708, 22 L.

Ed. 2d at 667 (stating the Court “ha[d] grave doubts” that the general intent standard

was constitutionally sufficient to sustain a conviction pursuant to an anti-threat

statute); Elonis, 575 U.S. at __, 192 L. Ed. 2d at 20–2 (Alito, J., concurring) (arguing

that the First Amendment required something more than an objective standard, but

that a “recklessness” standard would suffice); Perez v. Florida, __ U.S. __, __, 197 L.

Ed. 2d 480, 482 (2017) (Sotomayor, J., concurring) (“Together, Watts and Black make

clear that to sustain a threat conviction without encroaching upon the First

Amendment, States must prove more than the mere utterance of threatening words—

some level of intent is required. And these two cases strongly suggest that it is not

enough that a reasonable person might have understood the words as a threat—a

jury must find that the speaker actually intended to convey a threat.”).

The next Supreme Court opinion involving “true threats” was Black, which

contained the first definition of a “true threat” by the Court, and seriously called into

question the constitutionality of prosecuting someone under an anti-threat statute

without any “true threat” specific intent requirement. Black, 538 U.S. at 359, 155 L.

Ed. 2d at 552 (citation omitted) (stating in part that “‘[t]rue threats’ encompass those

statements where the speaker means to communicate a serious expression of an

intent to commit an act of unlawful violence to a particular individual or group of

individuals”). Thereafter, the Fourth Circuit

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recognize[d] the potential for a conflict between the

Supreme Court’s definition of a true threat [in Black] and

an objective analysis of a true threat. At least two Circuit

Courts of Appeal have seized upon this potential conflict,

and resolved it by concluding that the Supreme Court’s

definition of a true threat . . . precludes an objective

analysis. Other courts have suggested that Black be

interpreted to require both an objective and subjective

inquiry in the analysis of a true threat.

United States v. White, 2010 WL 438088, at *8 (W.D.Va. Feb. 4, 2010), aff’d in part,

vacated in part, and remanded, 670 F.3d 498 (4th Cir. 2012) (citations omitted). The

Fourth Circuit decided to “remain” a general intent jurisdiction despite Black.14

White I, 670 F.3d at 509 (citation omitted) (emphasis in original) (“[W]hile the speaker

need only intend to communicate a statement, whether the statement amounts to a

true threat is determined by the understanding of a reasonable recipient familiar with

the context that the statement is a ‘serious expression of an intent to do harm’ to the

14 Except for the uncertain status of Patillo, 431 F.2d 293. See Lockhart, 382 F.3d at 449–50;

United States v. Spring, 305 F.3d 276, 280–81 (4th Cir. 2002); United States v. Maxton, 940 F.2d 103,

106 (4th Cir. 1991) (citation omitted) (“extrinsic evidence to prove an intent to threaten should only be

necessary when the threatening nature of the communication is ambiguous”); Cooper, 865 F.2d at 85

(specific intent requirement of Patillo met because evidence was sufficient for jury to conclude the

defendant “had a present intention to shoot Gandhi”); United States v. McMurtrey, 826 F.2d 1061,

1987 WL 38495, *2 (4th Cir. 1987) (unpublished) (citing Patillo, and holding “a present intent to do

injury” is essential element of 18 U.S.C. § 871(a)); United States v. Maisonet, 484 F.2d 1356, 1359 (4th

Cir. 1973) (finding First Amendment requirements satisfied because the jury was “charged . . . that

the government was required to prove . . . that [the defendant] intended [the communication] to be

such a threat”); United States v. Smith, 448 F.2d 726, 727 (4th Cir. 1971); United States v. Dutsch, 357

F.2d 331, 333 (4th Cir. 1966) (citation omitted) (“[A] conviction under 18 U.S.C. § 875(c) requires a

showing that a threat was intended[.]”); but see Darby, 37 F.3d at 1063–66 (4th Cir.) (holding no

specific intent required, partly on the erroneous determination that the relevant language in Dutsch

was “merely dictum,” and by dismissing Patillo in a footnote without any analysis).

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recipient. This is and has been the law of this circuit, and nothing in Black appears

to be in tension with it.”).

General intent jurisdictions like the Fourth Circuit have focused on the

following language from Black: “‘True threats’ encompass those statements where the

speaker means to communicate a serious expression of an intent to commit an act of

unlawful violence to a particular individual or group of individuals.” Black, 538 U.S.

at 359, 155 L. Ed. 2d at 552. These jurisdictions have construed this language as

consistent with the general intent standard that evolved from Ragansky, i.e., that the

defendant understood the meaning of the words in the statement alleged to be a

threat; a reasonable person familiar with the context would understand the

statement as “a serious expression of an intent to commit an act of unlawful violence

to a particular individual or group of individuals[,]” id.; and the defendant “mean[t]

to communicate” the statement. The State need only prove that the defendant

intended to communicate the statement, without regard to whether the defendant

meant the statement to constitute or contain a threat of any kind, and without regard

to whether the defendant had any bad purpose in communicating the statement.

However, this interpretation does not appear to us as being the only logical

reading of Black, nor even the most obvious. Particularly since we are construing

language involving criminal liability, see Rogers, 422 U.S. at 47, 45 L. Ed. 2d at 10–

1, the interpretation of the Black “true threat” definition found in White I, 670 F.3d

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at 509, and opinions from other jurisdictions, leaves us unconvinced. The definition

in Black can just as readily be read as holding a “true threat” is one where what “the

speaker means to communicate” is a “statement” the speaker intends the recipient to

understand as “a serious expression of an intent to commit an act of unlawful

violence[.]” Black, 538 U.S. at 359, 155 L. Ed. 2d at 552; see also, generally, United

States v. X-Citement Video, Inc., 513 U.S. 64, 68–9, 79, 130 L. Ed. 2d 372, 379, 385

(1994) (holding First Amendment required construction of a statute so that the intent

element attaches to all of the additional elements). For example: “John’s statement

was meant to communicate a serious expression of an intent to kill Ron.” The obvious,

ordinary, and natural reading of this sentence is that John’s purpose, or intent, was

to inform the recipient that John planned to kill Ron, not that John’s intent was

simply to communicate something to the recipient. Of course, in the example, John

also intended to communicate the statement to the recipient, but only as a means of

delivering the specific message contained therein: a threat.

We agree with the Ninth Circuit, which did not appear to identify any alternate

reading in the language from Black:

The Court held in [Black] that under the First Amendment

the State can punish threatening expression, but only if the

“speaker means to communicate a serious expression of an

intent to commit an act of unlawful violence to a particular

individual or group of individuals.” It is therefore not

sufficient that objective observers would reasonably perceive

such speech as a threat of injury or death.

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Bagdasarian, 652 F.3d at 1116 (emphasis added) (citations omitted). The Ninth

Circuit said of the Supreme Court’s definition of “true threat” in Black:

The clear import of this definition is that only intentional

threats are criminally punishable consistently with the

First Amendment. First, the definition requires that “the

speaker means to communicate . . . an intent to commit an

act of unlawful violence.” A natural reading of this

language embraces not only the requirement that the

communication itself be intentional, but also the

requirement that the speaker intend for his language to

threaten the victim.

Cassel, 408 F.3d at 631. The court in Cassel held that it was “bound to conclude that

speech may be deemed unprotected by the First Amendment as a ‘true threat’ only

upon proof that the speaker subjectively intended the speech as a threat.” Cassel,

408 F.3d at 633 (footnote omitted). In Bagdasarian, the Ninth Circuit held that the

constitutionally required elements of “true threat” and “specific intent” were essential

elements in addition to the statutory elements:

Two elements must be met for a statement to constitute an

offense under [the statute]: objective and subjective. The

first is that the statement would be understood by people

hearing or reading it in context as a serious expression of

an intent to kill or injure a major candidate for

President.[15] The second is that the defendant intended

that the statement be understood as a threat. [The

defendant’s] conviction under [the statute] can be upheld

only if both the objective and subjective requirements are

met[.]

15 In other words, a true threat.

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Bagdasarian, 652 F.3d at 1118 (citations omitted) (emphasis added).

The Tenth Circuit, after a lengthy and thorough analysis, held: “Does the First

Amendment, as construed in Black, require the government to prove in any true-

threat prosecution that the defendant intended the recipient to feel threatened? We

conclude that it does.” United States v. Heineman, 767 F.3d 970, 975 (10th Cir. 2014).

The court contended Black had “been misconstrued by some courts that we highly

respect” and held that “a careful review of the opinions of the Justices [in Black]

makes clear that a true threat must be made with the intent to instill fear.” Id. at

976; id. at 978 (alteration in original) (citation omitted) (“When the Court says that

the speaker must ‘mean[] to communicate a serious expression of an intent,’ it is

requiring more than a purpose to communicate just the threatening words. It is

requiring that the speaker want the recipient to believe that the speaker intends to

act violently.”). This specific intent requirement is in addition to the “reasonable

person” general intent requirement necessary to prove the threat was a “true threat.”

Id. at 972–73 (citations omitted) (“[T]he statement itself must be one that a

reasonable person in the circumstances would understand ‘as a declaration of

intention, purpose, design, goal, or determination to inflict [bodily injury] on another.’

And ‘[i]t is not necessary to show that [the] defendant intended to carry out the

threat,’ although the threat must be a serious one, ‘as distinguished from words as

mere political argument, idle talk or jest.’”).

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In Elonis, the Supreme Court did not answer the issue before it, whether the

First Amendment required more than a general intent standard; instead, it reversed

the Court of Appeals based solely on federal statutory construction grounds. The

Court held: “Federal criminal liability generally does not turn solely on the results

of an act without considering the defendant’s mental state.” Elonis, 575 U.S. at __,

192 L. Ed. 2d at 16. “Under [an anti-threat statute], ‘wrongdoing must be conscious

to be criminal.’” Id. “[A] defendant must be ‘blameworthy in mind’ before he can be

found guilty, a concept courts have expressed over time through various terms such

as mens rea, scienter, malice aforethought, guilty knowledge, and the like[,]” because

“‘wrongdoing must be conscious to be criminal’” and “the ‘general rule’ is that a guilty

mind is ‘a necessary element in the indictment and proof of every crime.’” Id. at __,

192 L. Ed. 2d at 12–3 (citations omitted). We find the analysis in Elonis relevant to

our review because long-standing Supreme Court precedent generally requires

statutes criminalizing speech to be construed more narrowly than criminal statutes

not implicating First Amendment protections:

“[T]he existence of a mens rea is the rule of, rather than

the exception to, the principles of Anglo-American criminal

jurisprudence.” . . . [T]he question here is as to the validity

of this ordinance’s elimination of the scienter

requirement—an elimination which may tend to work as

substantial restriction on the freedom of speech and of the

press. Our decisions furnish examples of legal devices and

doctrines in most applications consistent with the

Constitution, which cannot be applied in settings where

they have the collateral effect of inhibiting the freedom of

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expression, by making the individual the more reluctant to

exercise it.

Smith v. California, 361 U.S. 147, 150–51, 4 L. Ed. 2d 205, 209–10 (1959) (emphasis

added) (citations omitted); Zurcher v. Stanford Daily, 436 U.S. 547, 564, 56 L. Ed. 2d

525, 541 (1978) (citation omitted) (“Where the materials sought to be seized may be

protected by the First Amendment, the requirements of the Fourth Amendment must

be applied with ‘scrupulous exactitude.’”).

Based upon the above analysis, we hold the First Amendment requires that a

specific intent element be read into anti-threat statutes. We further agree with the

federal districts and hold that proof of a “true threat” requires a general intent test.

We believe the general intent test should be from the viewpoint of an objective,

reasonable person considering the alleged threat in full context.16 What is required

to prove the “true threat” element and the intent elements will be discussed further

below. Therefore, anti-threat statutes must be construed to include, in addition to

the statutory elements, the constitutionally required elements of “true threat,” as

determined through application of the general intent test adopted above to the

definition of a “true threat,” and a “specific intent” to threaten.

4. Is “True Threat” a Question of Fact or Law

16 We do not believe the “reasonable person” should have to attempt to step into the shoes of

either the defendant or the person allegedly threatened.

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The Supreme Court has recognized “the vexing nature” of “distinguishing law

from fact.” Bose, 466 U.S. at 501, 80 L. Ed. 2d at 517 (citation and quotation marks

omitted). The State contends “true threat” is a question of law that only a court can

decide. The elements necessary to prove speech falls within a recognized category of

“unprotected” speech, such as “actual malice” or “true threat,” have been referred to

as “questions of fact,” “questions of law,” “mixed questions of fact and law,” “ultimate

facts,” and “constitutional facts.” See Bose, 466 U.S. at 498–510, 517, 80 L. Ed. 2d at

510–522, 527–28. The Supreme Court generally refers to these determinations as

mixed questions of fact and law or, more specifically, as “constitutional facts.” Id.;

United States v. Hanna, 293 F.3d 1080, 1088 (9th Cir. 2002). According to the Ninth

Circuit: “Constitutional facts are facts—such as the existence of actual malice or

whether a statement is a true threat—that determine the core issue of whether the

challenged speech is protected by the First Amendment.” Id. “[Q]uestions of

‘constitutional fact’ have been held to require de novo review.” Jacobellis v. Ohio, 378

U.S. 184, 190 n.6, 12 L. Ed. 2d 793, 799 n.6 (1964) (citations omitted); Bose, 466 U.S.

at 508 n.27, 80 L. Ed. 2d at 522 n.27. For this reason, appellate courts will conduct

de novo whole record review in First Amendment cases, even though “‘the jury was

properly instructed and there is some evidence to support its findings[.]’” Id. at 506–

07, 80 L. Ed. 2d at 520-21 (citation omitted).

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Therefore, whatever terminology is applied to the issue of whether speech falls

within one of the “unprotected” categories, that question is usually for the jury to

determine in the first instance:

If it were clear, as a matter of law, that the speech in

question was protected, [i.e., not a true threat,] we would

be obligated to remand not for a new trial, but for a

judgment of acquittal. If, on the other hand, “there were

material facts in dispute or it was not clear that [the

communications] were protected expression or true

threats,” it was appropriate to submit the issue, in the first

instance, to the jury.

Hanna, 293 F.3d at 1087 (citations omitted); see also id. at 1088 n.5.

5. Proving a “True Threat”

a. Definition

In order to prove a “true threat,” the State and the trial court must first know

the proper definition of “true threat.” “[T]he First Amendment does not permit the

government to punish speech merely because the speech is forceful or aggressive.

What is offensive to some is passionate to others. The First Amendment . . . requires

[the trier of fact] . . . to differentiate between ‘true threat[s],’ and protected speech.”

United States v. Dinwiddie, 76 F.3d 913, 925 (8th Cir. 1996) (alteration in original)

(citation omitted). The Supreme Court in Watts did not provide a definition of “true

threat,” but made clear that speech may not be punished simply because it includes

“vehement, caustic, and sometimes unpleasantly sharp attacks on government and

public officials”; because it is “vituperative, abusive, and inexact”; or because it

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constitutes “a kind of very crude offensive method of stating a political opposition to”

a public official. Watts, 394 U.S. at 708, 22 L. Ed. 2d at 667 (citations omitted). It is

clear that “threats” that amount to nothing more than jest, idle talk, or political

hyperbole are protected speech. Id.; United States v. Spruill, 118 F.3d 221, 228 (4th

Cir. 1997). “True threats” do not include “the kind of hyperbole, rhetorical excesses,

and impotent expressions of anger or frustration that in some contexts can be

privileged even if they alarm the addressee.” 16A Am. Jur. 2d Constitutional Law §

527 (footnote omitted).

A “true threat” “instills in the addressee a fear of . . . serious personal violence

from the speaker, it is unequivocal, and it is objectively likely to be followed by

unlawful acts[.]” Id. The Second Circuit noted that the purpose of the Watts “true

threat” requirement was to

insure that only unequivocal, unconditional and specific

expressions of intention . . . to inflict injury may be

punished—only such threats, in short, as are of the same

nature as those threats which are . . . ‘properly punished

every day under statutes prohibiting extortion, blackmail

and assault without consideration of First Amendment

issues.’

United States v. Kelner, 534 F.2d 1020, 1027 (2d Cir. 1976) (citation omitted). “To fall

outside of the First Amendment’s protections, a threat must ‘according to its language

and context convey[] a gravity of purpose and likelihood of execution so as to

constitute speech beyond the pale of protected vehement, caustic, unpleasantly sharp

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attacks on government and public officials.’” United States v. Dillard, 795 F.3d 1191,

1199 (10th Cir. 2015) (alteration in original) (citations and quotation marks omitted).

As noted, Black is the source of the definition of “true threats” currently

applied in most, if not all, “true threats” cases:

“True threats” encompass those statements where the

speaker means to communicate a serious expression of an

intent to commit an act of unlawful violence to a particular

individual or group of individuals. The speaker need not

actually intend to carry out the threat. Rather, a

prohibition on true threats “protect[s] individuals from the

fear of violence” and “from the disruption that fear

engenders,” in addition to protecting people “from the

possibility that the threatened violence will occur.”

Intimidation in the constitutionally proscribable sense of

the word is a type of true threat, where a speaker directs a

threat to a person or group of persons with the intent of

placing the victim in fear of bodily harm or death.

Black, 538 U.S. at 359–60, 155 L. Ed. 2d at 552 (alteration in original) (citations

omitted). We construe the definition set forth in Black within the context of “true

threat” analysis laid out above. A “true threat” is a statement where the speaker

intends to communicate, to a particular individual or group of individuals, a threat,

being “a serious expression of an intent to commit an act of unlawful violence[.]” Id.

b. Intent

As held above, we adopt the standard set forth by the Ninth Circuit, which

includes both a general intent standard to prove a “true threat,” and a specific intent

standard to prove a defendant’s subjective intent to threaten a person or group of

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persons by communicating the alleged threat. Bagdasarian, 652 F.3d at 1118

(citations omitted) (“Two elements must be met for a statement to constitute an

offense under [an anti-threat statute]: objective and subjective.”).

c. Context

The Supreme Court has long recognized that determination of whether a

defendant’s “speech” falls into one of the categories of “unprotected” speech, such as

“true threats,” must be made considering the context in which the communication

was made; i.e., all the facts surrounding the communication of the challenged speech.

See, e.g., F.C.C. v. Pacifica Found., 438 U.S. 726, 750, 57 L. Ed. 2d 1073, 1094 (1978)

(“[C]ontext is all-important[;] [t]he concept requires consideration of a host of

variables.”); Denver Area Educ. Tel. v. F.C.C., 518 U.S. 727, 752, 135 L. Ed. 2d 888,

908 (1996) (citations omitted) (“[W]hat is ‘patently offensive’ depends on context[.]”).

As with the other “unprotected” categories, the Supreme Court looks to the context of

an alleged threat in order to determine whether it constitutes a “true threat.” Watts,

394 U.S. at 707–08, 22 L. Ed. 2d at 667.

Federal circuit courts have consistently held that determination of whether a

“threat” rises to the level of a “true threat” must be determined not only based on the

specific language used, or acts undertaken, but also by the context within which the

alleged threat was made. “Determining whether a statement amounts to a true

threat requires ‘a fact-intensive inquiry, in which the language, the context in which

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the statements are made, as well as the recipients’ responses are all relevant.’”

United States v. Wheeler, 776 F.3d 736, 743 (10th Cir. 2015) (citations omitted). The

Ninth Circuit recognized in 2002: “We, and so far as we can tell, other circuits as

well, consider the whole factual context and ‘all of the circumstances’ in order to

determine whether a statement is a true threat.” Planned Parenthood v. Amer. Coal.

of Life, 290 F.3d 1058, 1078 (9th Cir. 2002) (citation omitted); see also id. at 1078–79

(cases cited therein); United States v. Khorrami, 895 F.2d 1186, 1193 (7th Cir. 1990)

(citation omitted) (“In Hoffman we emphasized the importance of the context of a

statement in determining whether it is a true threat or merely political hyperbole.”).

The Fourth Circuit has also recognized the “Watts requirement that the defendant’s

statement be examined in its full context[.]” Patillo, 431 F.2d at 296 (citation

omitted); White II, 810 F.3d at 220. State courts also require consideration of context.

See, e.g., Colorado v. McIntier, 134 P.3d 467, 472 (Colo. App. 2005) (“The critical

inquiry is ‘whether the statements, viewed in the context in which they were spoken

or written, constitute a “true threat”’”); Harrell v. Georgia,778 S.E.2d 196, 200–01

(Ga. 2015). Therefore, we hold:

Two elements must be met for a statement to constitute an

offense under [an anti-threat statute]: objective and

subjective. The first is that the statement would be

understood by people hearing or reading it in context as a

serious expression of an intent to kill or injure [the person

or persons from an identified group]. The second is that

the defendant intended that the statement be understood

as a threat. Because [a defendant’s] conviction under [an

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anti-threat statute] can be upheld only if both the objective

and subjective requirements are met, neither standard is

the obvious starting point for [appellate] analysis, and

. . . resolution of either issue may serve as an alternate

holding.

Bagdasarian, 652 F.3d at 1118 (emphasis added) (citations omitted).

6. Jury Instructions

As recognized by our Supreme Court, correct and thorough jury instructions

are fundamental to a fair and reliable trial:

“The jury charge is one of the most critical parts of a

criminal trial.” “The purpose of . . . a charge to the jury is

to give a clear instruction to assist the jury in an

understanding of the case and in reaching a correct

verdict,” including how “the law . . . should be applied to

the evidence[.]” As a result, the trial court has a duty “to

instruct the jury on all substantial features of a case raised

by the evidence.” In the event that a “defendant’s request

for [an] instruction [is] correct in law and supported by the

evidence in the case, the trial court [is] required to give the

instruction, at least in substance.” “[I]n giving jury

instructions,” however, “‘the court is not required to follow

any particular form,’ as long as the instruction adequately

explains ‘each essential element of the offense.’”

State v. Fletcher, 370 N.C. 313, 324–25, 807 S.E.2d 528, 537 (2017) (alterations in

original) (citations omitted). Complete and proper jury instructions are vital for the

“essential feature of a jury[,] . . . [its] interposition between the accused and his

accuser.” Williams v. Florida, 399 U.S. 78, 100, 26 L. Ed. 2d 446, 460 (1970).

“[T]he essential Sixth Amendment inquiry is whether a fact is an element of

the crime.” Alleyne, 570 U.S. at 114, 186 L. Ed. 2d at 329. “The touchstone for

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determining whether a fact must be found by a jury beyond a reasonable doubt is

whether the fact constitutes an ‘element’ . . . of the charged offense.” Id. at 107, 186

L. Ed. 2d at 324 (citations omitted). “‘The general rule is that what is necessary to

be charged as a descriptive part of the offense[, an essential element,] is required to

be proved’” by the State beyond a reasonable doubt. State v. Mather, 221 N.C. App.

593, 599, 728 S.E.2d 430, 434 (2012) (quoting State v. Connor, 14 N.C. 700, 704, 55

S.E. 787, 789 (1906)). “This Court . . . reviews de novo the trial court’s jury

instructions regarding the elements of the offense at issue.” State v. Watterson, 198

N.C. App. 500, 503, 679 S.E.2d 897, 899 (2009) (citation omitted).

a. Requirements

Failure to submit every essential element of a crime for jury determination

violates the defendant’s constitutional rights:

The Sixth Amendment provides that those “accused” of a

“crime” have the right to a trial “by an impartial jury.” This

right, in conjunction with the Due Process Clause, requires

that each element of a crime be proved to the jury beyond

a reasonable doubt. The substance and scope of this right

depend upon the proper designation of the facts that are

elements of the crime.

Alleyne, 570 U.S. at 104–05, 186 L. Ed. 2d at 322 (citations omitted). As discussed

above, a “true threat” is a “constitutional fact” that must be proven by the State

beyond a reasonable doubt. Therefore, “true threat” is an essential element of

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N.C.G.S. § 14-16.7(a), and the trial court is constitutionally prohibited from deciding

the existence of a “true threat” as a matter of law:17

At stake . . . are constitutional protections of surpassing

importance: the proscription of any deprivation of liberty

without “due process of law,” Amdt. 14, and the guarantee

that “[i]n all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial jury,”

Amdt. 6. Taken together, these rights indisputably entitle

a criminal defendant to “a jury determination that [he] is

guilty of every element of the crime with which he is

charged, beyond a reasonable doubt.”

Apprendi, 530 U.S. at 476–77, 147 L. Ed. 2d 435, 447 (emphasis added) (citations

omitted); see also Lockhart, 382 F.3d at 449–50 (listing “true threat” as an element

required by the First Amendment).

Nonetheless, the State argues that the trial court has no obligation to instruct

the jury on any aspect of “true threat” jurisprudence in an anti-threat trial. The State

relies on the Supreme Court’s opinion in Dennis, which, according to the State, “held

the courts, not juries, decide whether speech is protected by the First Amendment”

and, therefore, the trial court, and not the jury, should determine whether a

communication is a “true threat.” While it is true that the constitutionality of

N.C.G.S. § 14-16.7(a), facially or as applied, is ultimately decided by “the courts,” the

State’s additional argument that the trial court, not the jury, should determine

whether the facts of a case support a finding of a “true threat” in the first instance is

17 The trial court can, of course, determine the non-existence of a true threat as a matter of

law, prior to, during, or following the evidentiary portion of the trial.

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counter to relevant Supreme Court precedent and overwhelming consensus found in

federal and state court opinions. In fact, we cannot locate a single jurisdiction that

does not send to the jury, in the first instance, the question of whether a defendant’s

“speech,” considered in context, falls into one of the established categories of

“unprotected” speech.

The Supreme Court has regularly considered whether the jury correctly

determined that the government, or the plaintiff, proved elements imposed by the

First Amendment, even when those elements were not included in the language of

the relevant statute. In fact, the Supreme Court’s review of the constitutionality of a

state statute may be dictated by the interpretation of the statute as stated in the jury

instructions: “[T]he gloss which [the State] placed on the ordinance [by the jury

instruction] gives it a meaning and application which are conclusive on us. . . . As

construed and applied it at least contains parts that are unconstitutional.”

Terminiello v. City of Chicago, 337 U.S. 1, 5, 93 L. Ed. 1131, 1135 (1949); see also id.

(“The ordinance as construed by the trial court [in its jury instructions] seriously

invaded [First Amendment protections]. It permitted conviction of petitioner if his

speech stirred people to anger, invited public dispute, or brought about a condition of

unrest.”); Black, 538 U.S. at 364–65, 155 L. Ed. 2d at 556 (“As interpreted by the jury

instruction, the provision chills constitutionally protected political speech because of

the possibility that a State will prosecute—and potentially convict—somebody

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engaging only in lawful political speech at the core of what the First Amendment is

designed to protect.”).

The Tenth Circuit expressly rejected the State’s reading of Dennis:

Citing Dennis, [the defendant] also argues the district

court should have resolved his First Amendment defense

as a matter of law rather than submit the matter to the

jury. . . . [In Dennis,] [t]he trial court denied defendants’

motion to dismiss, which was based on their assertion that

the statute was unconstitutional. . . .

Dennis is readily distinguishable. Here, [the defendant] is

not contesting the [facial] constitutionality of [the anti-

threat statute]. Rather, he asserts only that his particular

speech was political in nature. We consistently have held

that whether a defendant’s statement is a true threat or

mere political speech is a question for the jury. If there is

no question that a defendant’s speech is protected by the

First Amendment, the court may dismiss the charge as a

matter of law.

United States v. Viefhaus, 168 F.3d 392, 396–97 (10th Cir. 1999) (citations omitted).

The Fourth Circuit has repeatedly acknowledged that “‘[g]enerally, what is or is not

a true threat is a jury question[.]’” Feminist Majority Found. v. Hurley, 911 F.3d 674,

692 (4th Cir. 2018) (citation omitted). The Fourth Circuit has cited Dennis for the

proposition that a defendant is “entitled to have the issue as to whether his

statements constituted a [true] ‘threat’ properly submitted to the jury.” Alexander,

418 F.2d at 1206. Every other federal circuit is in agreement. See, e.g., United States

v. Stock, 728 F.3d 287, 297–98 (3rd Cir. 2013). Courts from other states have also

addressed the “true threat” jury instruction issue. See Johnston, 127 P.3d at 712

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(agreeing with “Black, our decisions . . ., and the body of federal case law[,]” which

have held anti-threat statutes “must be limited to true threats . . . and the jury must

be instructed accordingly”); see also, e.g., North Dakota v. Brossart, 858 N.W.2d 275,

284–85 (N.D. 2015).

The United States Constitution demands that the State prove every element of

a criminal offense beyond a reasonable doubt to a jury, absent proper waiver of a jury

trial. Sixth and Fourteenth Amendment “rights indisputably entitle a criminal

defendant to ‘a jury determination that [he] is guilty of every element of the crime with

which he is charged, beyond a reasonable doubt.’” Apprendi, 530 U.S. at 476–77, 147

L. Ed. 2d at 447 (citations omitted) (emphasis added); see also In re Winship, 397 U.S.

358, 364, 25 L. Ed. 2d 368, 375 (1970). We hold that the trial court must properly

and fully instruct the jury on all the required elements of anti-threat statutes such

as N.C.G.S. § 14-16.7(a), including the element of “true threat,” along with its

associated intent elements, both general and specific.

Our Supreme Court has recognized that the trial court must instruct the jury

in a manner that ensures the defendant’s First Amendment rights will not be

violated. State v. Leigh, 278 N.C. 243, 252, 179 S.E.2d 708, 713 (1971). In Leigh, the

Court granted the defendant a new trial because “[n]owhere in the charge did the

trial judge explain the law or apply the law to the evidence concerning [the]

defendant’s contention [that his speech was protected by the First Amendment].” Id.

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In order to obtain a constitutional conviction for threatening a court officer

pursuant to N.C.G.S. § 14-16.7(a), the State must prove, beyond a reasonable doubt,

that: (1) the defendant; (2) knowingly and willfully; (3) made a threat; (4) constituting

a “true threat,” meaning a statement “that an ordinary, reasonable [person] who is

familiar with the context in which the statement [wa]s made would interpret as a

serious expression of an intent to do harm”;18 (5) to a court official; (6) knowing the

court official was a court official; and (7) when the defendant communicated the

statement, the defendant specifically intended the statement to be understood by the

court officer as a real threat expressing the defendant’s intention to carry out the

actions threatened. N.C.G.S. § 14-16.7(a); White II, 810 F.3d at 221; Cassel, 408 F.3d

at 632–33.

b. Prejudice

Failure to properly instruct a jury on a constitutionally required element of a

crime is subject to harmless error review. See Neder v. United States, 527 U.S. 1, 11–

3, 144 L. Ed. 2d 35, 48–50 (1999). “The standard of review for alleged violations of

constitutional rights is de novo.” State v. Graham, 200 N.C. App. 204, 214, 683 S.E.2d

437, 444 (2009) (citation omitted).

[The test] is whether it appears “beyond a reasonable doubt

that the error complained of did not contribute to the

verdict obtained.” [S]ee Delaware v[.] Van Arsdall, [475

U.S. 673, 681, 89 L. Ed. 2d 674, 684 (1986)] (“[A]n

18 White II, 810 F.3d at 221.

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otherwise valid conviction should not be set aside if the

reviewing court may confidently say, on the whole record,

that the constitutional error was harmless beyond a

reasonable doubt.”).

Neder, 527 U.S. at 15–6, 144 L. Ed. 2d 35 at 51 (citations omitted); State v.

Hammonds, 370 N.C. 158, 167, 804 S.E.2d 438, 444 (2017) (citing N.C.G.S. § 15A-

1443 (2015)) (“‘A violation of the defendant’s rights under the Constitution of the

United States is prejudicial unless the appellate court finds that it was harmless

beyond a reasonable doubt. The burden is upon the State to demonstrate, beyond a

reasonable doubt, that the error was harmless.’”).

III. Defendant’s Appeal

A. As Applied Challenge/Whole Record Review

Based upon our holdings above, we conduct an independent whole record

review to determine whether Defendant’s Facebook posts constituted a “true threat”

to kill D.A. Welch, and whether Defendant subjectively intended his Facebook posts

to reach D.A. Welch for the purpose of causing her to believe that Defendant intended

to kill her. Milkovich, 497 U.S. at 17, 111 L. Ed. 2d 17 (citations omitted) (the

Supreme Court has “determined that ‘in cases raising First Amendment issues . . . an

appellate court has an obligation to “make an independent examination of the whole

record” in order to make sure that “the judgment does not constitute a forbidden

intrusion on the field of free expression”’”); Bagdasarian, 652 F.3d at 1118

(establishing the State must prove a “true threat” pursuant to both a reasonable

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person general intent standard considering the context, as well as the defendant’s

specific intent to threaten the alleged victim).

1. Plain Language Review of the Alleged Threats

We first examine each “threat” alleged in the indictment based solely upon the

plain language; then we examine the alleged threats in context. See In re White, 2013

WL 5295652, *44 (E.D.Va. 2013). Defendant’s indictment alleged five “threats,” and

reads in relevant part:

[D]efendant . . . did knowingly and willfully make a threat

to kill Ashley Welch, District Attorney, . . . by posting the

following on Facebook: “[P]eople question why a rebellion

against our government is coming? I hope

This text is long and has been trimmed here. Open the source document for the complete record.