264 N.C. App. 542
N.C. Ct. App.2019Background
- Shackelford met "Mary" at church; after unwanted in-person contact, he exchanged emails and mailed handwritten letters; church staff and a minister told him to stop contacting her.
- Mary discovered Shackelford had followed her on Google Plus and had posted multiple public messages about her (naming or referring to her) from June–December 2015; she blocked him and later deleted her account.
- Mary received a box of cupcakes from Shackelford at work, reported feeling stalked, and obtained a district-court no-contact order that also barred social-media posts about her.
- Shackelford was charged and tried on multiple felony stalking counts under N.C. Gen. Stat. § 14-277.3A, several counts based primarily on his Google Plus posts; jury returned guilty verdicts on four counts.
- On appeal the principal question was whether applying the stalking statute to Shackelford’s public social-media posts violated the First Amendment (and parallel state constitutional protections); the Court vacated all convictions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Shackelford’s Google Plus posts fall outside First Amendment protection as “speech integral to criminal conduct” | Posts that harass/intimidate victims can be considered integral to stalking and thus unprotected | Posts were public speech about a person, not conduct integral to a separate criminal act; the speech itself was criminalized | Not applicable — Court rejected the State’s invocation of the speech-integral exception; posts are protected speech in this context |
| Whether application of § 14-277.3A to posts is content-based regulation | The statute targets harmful harassment and protects victims; it punishes conduct, not speech | The statute requires examination of message content (would cause emotional distress), so it is content-based | Statute, as applied to these posts, is content-based |
| Whether the content-based application survives strict scrutiny (compelling interest & least restrictive means) | Preventing stalking escalation is a compelling interest; statute is narrowly targeted (willful, directed at a specific person, causes distress) | The statute is overbroad: it criminalizes many forms of protected speech and is not the least restrictive means (existing no-contact orders or targeting non-speech conduct are less restrictive) | The statute fails strict scrutiny as applied here; convictions based on posts violate the First Amendment |
| Remedy when convictions may rest on unconstitutional ground(s) | N/A | N/A | Vacate convictions that rested on social-media posts; because jury verdicts were general and some counts mixed protected speech with non-speech acts, all four convictions were vacated |
Key Cases Cited
- Police Dept. of City of Chicago v. Mosley, 408 U.S. 92 (First Amendment prohibits government restricting speech because of its message)
- Reed v. Town of Gilbert, 576 U.S. 155 (2015) (content-based speech regulations are presumptively unconstitutional)
- Ward v. Rock Against Racism, 491 U.S. 781 (content-neutral test; intermediate scrutiny for time/place/manner)
- Stevens v. United States, 559 U.S. 460 (per curiam) (recognizing categories of unprotected speech like obscenity, defamation, and speech integral to criminal conduct)
- New York v. Ferber, 458 U.S. 747 (unprotected speech integral to child-sex-abuse crimes)
- McCullen v. Coakley, 573 U.S. 464 (2014) (listeners’ reactions are not a content-neutral basis for regulation)
- State v. Bishop, 368 N.C. 869 (2016) (North Carolina cyberbullying statute held content-based and overbroad)
- People v. Relerford, 104 N.E.3d 341 (Ill. 2018) (Illinois stalking provision criminalizing communications to/about a person deemed content-based and overbroad)
- U.S. v. Osinger, 753 F.3d 939 (9th Cir.) (discusses speech-integral exception in federal stalking context)
- Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (speech used as an integral part of conduct violating a criminal statute may be unprotected)
- Griffin v. United States, 502 U.S. 46 (general jury verdicts that may rest on unconstitutional grounds require reversal)
- Stromberg v. California, 283 U.S. 359 (statute invalid on its face requires setting aside convictions that may have rested on invalid clause)