STATE OF NORTH CAROLINA v. FRANK W. PETERSILIE
No. 43PA92
IN THE SUPREME COURT OF NORTH CAROLINA
30 July 1993
334 N.C. 169 (1993)
The Court of Appeals did not err by vacating the superior court‘s judgment in a prosecution for publishing unsigned materials about a candidate for public office in violation of
Am Jur 2d, Criminal Law § 352; Justices of the Peace § 108.
2. Appeal and Error §§ 48, 367 (NCI4th) – motion to amend record — addition of presentment — denial by Court of Appeals not error — election by Supreme Court to allow amendment
The Court of Appeals did not err when it denied the State‘s motion to amend the record on appeal by adding copies of the presentment upon which misdemeanor charges were initiated against defendant to show that the superior court had jurisdiction over the case. However, the Supreme Court
Am Jur 2d, Appeal and Error §§ 482, 484; Justices of the Peace § 108.
3. Elections § 13 (NCI4th) – unsigned publication of charge against election candidate — statute prohibiting — not unconstitutionally vague
As used in the statute making it unlawful for anyone in the context of an election (1) to publish (2) any charge (3) derogatory to a candidate or calculated to affect the candidate‘s electoral chances (4) without signing the publication,
Am Jur 2d, Elections §§ 379, 380.
4. Elections § 13 (NCI4th); Constitutional Law § 117 (NCI4th) – unsigned publication of charge against election candidate — statute prohibiting — no violation of free speech
The statute making it unlawful for anyone to publish any charge derogatory to an election candidate or calculated to affect the candidate‘s electoral chances without signing the publication,
Am Jur 2d, Constitutional Law §§ 496, 497; Elections §§ 379, 380.
5. Elections § 13 (NCI4th) – publishing unsigned materials about candidates – alternate theories — erroneous intent instruction on one theory — prejudice
In a prosecution for publishing unsigned materials about two candidates for public office in violation of
Am Jur 2d, Elections §§ 379, 380.
6. Evidence and Witnesses §§ 906, 2047 (NCI4th) — unsigned materials about candidates — opinions of others as to whether derogatory or hurtful — inadmissible hearsay
In a prosecution for publishing unsigned materials about two candidates for public office, testimony by the candidates as to the actual opinions expressed by certain local residents out of court concerning whether the materials were derogatory or hurtful to the candidates’ chances of being elected was admitted for the truth of what was said and was inadmissible hearsay. The statements were not admissible as lay witness opinion testimony under
Am Jur 2d, Evidence § 497; Expert and Opinion Evidence §§ 26, 53, 54.
Justice MITCHELL dissenting.
Justice PARKER did not participate in the consideration or decision of this case.
Lacy H. Thornburg, Attorney General, by Charles M. Hensey, Special Deputy Attorney General, for the State.
Chester E. Whittle, Jr., for defendant-appellee.
EXUM, Chief Justice.
The substantive issue before us is whether
I.
Defendant was convicted of eleven counts of publishing unsigned materials about a candidate for public office—all misdemeanors in violation of
Evidence at defendant‘s trial tended to show as follows: Defendant owned a land development company, Property Services and Investments (PSI), in Boone, North Carolina, which was primarily engaged in the management of rental properties. Defendant was also among ten candidates running for three seats on the Boone Town Council in the 10 October 1989 election. Only one candidate, Ben Suttle, received a clear majority. A run-off election was required, but defendant did not receive enough votes to qualify for the run-off. Four other candidates did qualify for the run-off election, two of whom were Saul Chase and Louise Miller.
On 1 or 2 November 1989, defendant obtained a copy of a letter addressed to his mother with which was enclosed a copy of a Washington Post article written by Nan Chase, candidate Chase‘s wife. The article expressed Mrs. Chase‘s opinion about prayer in school. The accompanying letter stated:
Chase wants to take away aggressive Christian influence from public buildings and gathering places, such as our schools.
In an article published in the Washington Post, Mrs. Saul Chase ridiculed the people of Boone for their support of Christianity stating that here “Christianity is... intimidating and self-perpetuating.”
Calling herself an “unbeliever (in Christianity) in the midst of the pious“, Mrs. Saul Chase states that she is unable to openly criticize “religious paraphernalia displayed in public offices and on state owned vehicles” and she also says that if (anyone) speak(s) out forcefully against what may be an unconstitutional mixing of church and state, they will be unable to enter the political mainstream that has the power to separate the two spheres“. - This thought has not been spoken to the people of Boone by Mrs. Chase, only to the Washington Post. Why keep it from us? Because her husband is on our Town Council, and was just put in the run off for re-election. If he wins, he will have the power to take away any Christian influence from the town employees, buildings, etc. It can be assumed that Chase allegedly has a goal to wipe out Christian influence from our town, take it away form the very God-fearing
Christian people who helped put him in office. Candidates should be open about all of their feelings of all issues and it appears that Saul Chase has been deceptive to us by not supporting the good, wholesome beliefs of our people. A deception that is allegedly a deliberate attempt to gain power to take our Christian atmosphere from us. We, the town, should stop him, keep him out of our town government and hold fast to our Christian freedoms. Vote against Saul Chase!
With the help of various members of his staff at PSI, defendant reproduced and mailed approximately thirty to seventy copies of the letter to persons who voted in the 10 October 1989 election. Defendant personally addressed several of the envelopes. He did not sign his name to the mailing or otherwise indicate that the mailing came from him.
On 3 or 4 November 1989 defendant received a copy of a flyer concerning candidates Miller and Chase. The flyer stated:
VOTE LIQUOR BY THE DRINK FOR BOONE.
FOUR YEARS AGO, WITH THE HELP OF SAUL CHASE, THE A.S.U. STUDENTS BROUGHT BEER TO BOONE. NOW IS THE TIME TO COMPLETE THE PARTY!
SUTTLE, DUGGER & MARSH REFUSE TO ENDORSE THIS ISSUE AND WOULD WORK TO DEFEAT THE REFERENDUM.
VOTE SAUL CHASE AND LOUISE MILLER
NOV. 7TH
THE “PRO-LIQUOR” CANDIDATES
Defendant copied and mailed out twenty to twenty-five unsigned copies of the flyer. Again, defendant did not sign his name to the mailing or otherwise identify himself as the person who sent it.
On 15 November 1989 Special Agent Steve Wilson of the North Carolina State Bureau of Investigation began investigating the mailings. Wilson spoke with defendant on 27 November 1989 at defendant‘s PSI office. When Wilson informed defendant that he had compared the handwriting on defendant‘s notice of candidacy to handwriting appearing on the flyers and anonymously mailed envelopes, defendant admitted addressing some of the anonymous letters. He said he was unaware that sending the anonymous material was a criminal violation.
II.
[1] The State contends the Court of Appeals erred by vacating the superior court proceedings for lack of jurisdiction. We conclude the Court of Appeals acted properly on the record before it.
Like the majority of states, North Carolina requires the State to prove jurisdiction beyond a reasonable doubt in a criminal case. State v. Batdorf, 293 N.C. 486, 493, 238 S.E.2d 497, 502 (1977). Exclusive, original jurisdiction of all misdemeanors lies in the District Court Division of the General Court of Justice.
- Which is a lesser included offense of a felony on which an indictment has been returned, or a felony information as to which an indictment has been properly waived; or
- When the charge is initiated by presentment; or
- Which may be properly consolidated for trial with a felony under G.S. 15A-926;
- To which a plea of guilty or nolo contendere is tendered in lieu of a felony charge; or
- When a misdemeanor conviction is appealed to the superior court for trial de novo, to accept a guilty plea to a lesser included or related charge.
“When the record shows a lack of jurisdiction in the lower court, the appropriate action on the part of the appellate court is to arrest judgment or vacate any order entered without authority.” State v. Felmet, 302 N.C. 173, 176, 273 S.E.2d 708, 711 (1981). See also State v. Hardy, 298 N.C. 191, 257 S.E.2d 426 (1979) (Record on appeal shows lack of jurisdiction when a defendant is convicted
Contrarily, “when the record is silent and the appellate court is unable to determine whether the court below had jurisdiction, the appeal should be dismissed.” Felmet, 302 N.C. at 176, 273 S.E.2d at 711. See also State v. Hunter, 245 N.C. 607, 96 S.E.2d 840 (1957) (No copy of the bill of indictment contained in the record on appeal; appeal dismissed.); State v. Banks, 241 N.C. 572, 86 S.E.2d 76 (1955) (Where Record failed to disclose jurisdiction in the court below; appeal dismissed.). In Felmet, we concluded the record was silent as to jurisdiction when the defendant was tried in superior court upon a warrant charging misdemeanor trespass because the record did not indicate whether the defendant had been tried in district court. We, therefore, held the Court of Appeals properly dismissed the appeal.
As did the Court of Appeals, we conclude this is a case in which the record affirmatively shows a lack of jurisdiction. According to the record, the only charging documents are indictments. All the offenses charged are misdemeanors. Under
The State contends the trial transcript shows that the charges against defendant were initiated by a presentment pursuant to
so much of the evidence, set out in the form provided in Rule 9(c)(1), as is necessary for an understanding of the errors assigned, or a statement that the entire verbatim transcript of the proceedings is being filed with the record pursuant
to Rule 9(c)(2), or designating portions of the transcript to be so filed . . . .
We are not persuaded by this argument. Appellate Rule 9(a)(3) sets forth the requisite contents of the record on appeal in criminal actions. Subsection (e), relied on by the State, is directed only to the presentation of the evidence. Subsection (c) governs how charging documents must be presented, and it provides that the record shall contain “copies of all warrants, informations, presentments, and indictments upon which the case has been tried in any court.”
III.
[2] Having concluded that the Court of Appeals acted properly on the record before it in vacating the judgment in the trial court, we also conclude the Court of Appeals did not err when it denied the State‘s motion to amend the record.
In Felmet, the defendant moved for leave to amend the record to include “the judgment of the district court which reflected defendant‘s appeal therefrom to the superior court” to show how the superior court obtained subject matter jurisdiction over his case. Felmet, 302 N.C. at 174, 273 S.E.2d at 710. The Court of Appeals denied the motion. Id. We concluded that the denial was a decision within the discretion of the Court of Appeals and that we could find no abuse of that discretion. Id. at 176, 273 S.E.2d at 711. Nevertheless, we held the record should be amended to reflect subject matter jurisdiction so that we could reach the substantive issue of the appeal. In so holding, we stated, “[this] is the better reasoned approach and avoids undue emphasis on procedural niceties.” Id.
When the record is amended to add the presentment, it is clear the superior court had jurisdiction over these misdemeanors under
A presentment is a written accusation by a grand jury, made on its own motion and filed with a superior court, charging a person, or two or more persons jointly, with the commission of one or more criminal offenses. A presentment does not institute criminal proceedings against any person, but the district attorney is obligated to investigate the factual background of every presentment returned in his district and to submit bills of indictment to the grand jury dealing with the subject matter of any presentments when it is appropriate to do so.
may investigate any offense as to which no bill of indictment has been submitted to it by the prosecutor and issue a presentment accusing a named person or named persons with one or more criminal offenses if it has found probable cause for the charges made. An investigation may be initiated upon the concurrence of 12 members of the grand jury itself or upon the request of the presiding or convening judge or the prosecutor.
The amendment to the record shows that on 2 January 1990, the district attorney asked the Watauga County Grand Jury, pursuant to
IV.
We now address the important constitutional questions raised in this case. Defendant raised the constitutional issues by moving before trial to dismiss the indictments on the ground of the unconstitutionality of the statute on which the indictments were based. He renewed the motion at the close of the State‘s evidence and at the close of all the evidence. All motions to dismiss were denied by the trial court, and defendant has assigned these denials as error.
[3] Defendant contends that
The statute at issue provides as follows:
§ 163-274. Certain Acts declared misdemeanors.
Any person who shall, in connection with any primary or election in this State, do any of the acts and things declared in this section to be unlawful, shall be guilty of a misdemeanor. It shall be unlawful:
. . . .
(7) For any person to publish in a newspaper or pamphlet or otherwise, any charge derogatory to any candidate or calculated to affect the candidate‘s chances of nomination or election, unless such publication be signed by the party giving publicity to and being responsible for such charge.
This statute is part of Subchapter VIII, titled “Regulation of Election Campaigns,” and of Article 22, titled “Corrupt Practices and Other Offenses against the Elective Franchise,” of our General Statutes. First enacted in 1931 (see Chapter 348, section 9(10) of the 1931 Session Laws), it is in the general category of election reform statutes, which take many forms and which are designed
A.
Defendant first contends that certain terms in the statute are so vague that it fails to provide persons clear notice of the prohibited conduct.
The test for determining whether a statute is unconstitutionally vague has been stated as follows:
A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.
Connally v. General Construction Co., 269 U.S. 385, 391, 70 L. Ed. 322, 328 (1926); accord Coates v. Cincinnati, 402 U.S. 611, 29 L. Ed. 2d 214 (1971); In re Burrus, 275 N.C. 517, 531, 169 S.E.2d 879, 888 (1969). While vagueness and uncertainty may invalidate a statute, In re Burrus, 275 N.C. at 531, 169 S.E.2d at 888, the Court will strive to interpret a statute to avoid serious doubts about its constitutionality. Delconte v. State, 313 N.C. 384, 402, 329 S.E.2d 636, 647 (1985). Thus if two reasonable constructions of the statute are possible, this Court will adopt the construction which renders the statute constitutional. In re Banks, 295 N.C. 236, 239, 244 S.E.2d 386, 388 (1978); Hobbs v. Moore County, 267 N.C. 665, 149 S.E.2d 1 (1966).
The statute, properly interpreted, is not unconstitutionally vague. It prohibits anyone in the context of an election from (1) publishing (2) any charge (3) derogatory to a candidate or calculated
We find “charge” to be the only term in the statute whose meaning may not be commonly understood and which requires judicial interpretation. See State v. Crawford, 329 N.C. 466, 485, 406 S.E.2d 579, 590 (1991). We find the following definitions to be instructive: The American Heritage Dictionary 260 (2d college ed. 1985) (“6. An accusation or indictment: a charge of conspiracy to defraud“); Webster‘s Ninth New Collegiate Dictionary 227 (1988) (“6 . . . b: a statement of complaint or hostile criticism <denied the [charge]s of nepotism that were leveled against him>“); Webster‘s Third New International Dictionary 377 (1966) (“6 a: an accusation of a wrong or offense: ALLEGATION, INDICTMENT <arrested on the [charge] of bribery> b: a statement of complaint or hostile criticism <the [charge] that earned incomes are based upon no principle of equity>“); see also Black‘s Law Dictionary 233 (6th ed. 1990) (“an accusation“); Legal Thesaurus 71 (1980) (“Accusation...allegation, arraignment, attack, blame, castigation, censure, citation, complaint, condemnation, count, countercharge“). The common thread in these definitions is that “charge” means an “accusation.” An “accusation” is defined as “a charge of wrongdoing; imputation of guilt or blame.” Random House Webster‘s College Dictionary 10.
A Kentucky statute provided: “Any person [could] prefer charges against a member of the police or fire department by filing them with the city manager” for purposes of having the accused “reprimanded, dismissed or demoted.” Mason v. Seaton, 303 Ky. 528, 529, 198 S.W.2d 205, 206 (1946) (emphasis added). The Court of Appeals of Kentucky held that “‘charges’ signify an accusation . . . of illegal conduct, either of omission or commission, by the person charged.” Id. at 531, 198 S.W.2d at 207. In Rosales v. City of Eloy, 122 Ariz. 134, 593 P.2d 688 (1979), a former police officer who had been discharged for misconduct sued the city and the police chief, alleging libel and slander because the mayor and police chief had informed a newspaper that “charges” had been placed
Using the above definitions and analyses, we conclude the legislature intended the word “charge” to mean an accusation of wrongdoing.
As interpreted, the statute defines the proscribed conduct with sufficient definiteness so as to avoid arbitrary and discriminatory enforcement. See Village of Hoffman Estates v. Flipside, 455 U.S. 489, 71 L. Ed. 2d 362 (1982). We therefore conclude the statute is not unconstitutionally vague.
B.
[4] Defendant next argues that the statute is not drawn narrowly enough and is constitutionally overbroad. Defendant agrees that the statute‘s goal of prohibiting anonymous pejorative campaign material is legitimate and concedes that “with more specificity in legislative drafting, that aim may be constitutionally sustainable.” Defendant-Appellee‘s New Brief, p. 22. He contends that, as drawn, the statute “embraces protected speech which the government may not restrict.” Id. at 21. The State contends to the contrary, arguing the statute is narrowly drawn so as to encompass only “anonymous, derogatory material that is directed toward specific candidates.” Brief for the State, p. 31. The State‘s position is that the statute could not be drawn more narrowly and still serve the State‘s compelling interest in insuring as far as possible fair elections. For the reasons which follow we find ourselves in agreement with the State.
The parties agree the State‘s interest in promoting fair and honest elections is legitimate and compelling.1 They disagree on whether the statute, as drafted, is necessary to serve that interest.
The First Amendment to the Federal Constitution provides:
Congress shall make no law . . . abridging the freedom of speech, or of the press[.]
Freedom of speech and of the press are two of the great bulwarks of liberty and therefore shall never be restrained, but every person shall be held responsible for their abuse.
Under the Federal Constitution, “freedom of speech . . . which [is] secured by the First Amendment against abridgement by the United States, [is] among the fundamental personal rights and liberties which are secured to all persons by the Fourteenth Amendment against abridgement by a state.” Thornhill v. Alabama, 310 U.S. 88, 95, 84 L. Ed. 1093, 1098 (1940). Where a statute regulating the time, place and manner of expressive activity is content-neutral in that it does not forbid communication of a specific idea, it will be upheld if the restriction is “narrowly tailored to serve a significant governmental interest,” and it “leaves open ample alternatives for communication.” Burson v. Freeman, 504 U.S. 191, 119 L. Ed. 2d 5, 13 (1992); United States v. Grace, 461 U.S. 171, 177, 75 L. Ed. 2d 736, 743-44 (1983). A statute, however, which on its face regulates the content of protected speech in that it restricts communication of a specific idea “must be subjected to exacting scrutiny: the State must show that the ‘regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.‘” Burson, 504 U.S. at 198, 119 L. Ed. 2d at 13-14, quoting Perry Education Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 45, 74 L. Ed. 2d 794, 804 (1983). A content-based regulation of speech occurs where restrictions are placed on the espousal of a particular viewpoint, or when there is a prohibition of public discussion on an entire topic. Burson, 504 U.S. at 197, 119 L. Ed. 2d at 13. In such a case, “a state must do more than assert a compelling state interest—it must demonstrate that its
Because the statute expressly regulates political speech, it is content-based. E.g., id. at 197, 119 L. Ed. 2d at 13. We must give it exacting scrutiny; and we must be satisfied that it is necessary to serve the State‘s compelling interest in having fair, honest elections.
Our State Constitution offers similar free speech protection in Article I, Section 14. This provision is self-executing, and we have recognized a cause of action against state officials for its violation. Corum v. University of North Carolina, 330 N.C. 761, 782, 413 S.E.2d 276, 289, cert. denied, Durham v. Corum, 506 U.S. 985, 121 L. Ed. 2d 431 (1992). In some of our cases, the Court has found the guarantees in the state and federal constitutions to be parallel and has addressed them as if their protections were equivalent. Felmet, 302 N.C. 173, 273 S.E.2d 708; Andrews v. Chateau X, 296 N.C. 251, 250 S.E.2d 603 (1979), vacated on other grounds, 445 U.S. 947, 63 L. Ed. 2d 782 (1980). We have also recognized that “in construing provisions of the Constitution of North Carolina, this Court is not bound by opinions of the Supreme Court of the United States construing even identical provisions in the Constitution of the United States.” State v. Hicks, 333 N.C. 467, 483, 428 S.E.2d 167, 176 (1993); State v. Arrington, 311 N.C. 633, 642, 319 S.E.2d 254, 260 (1984). “We do, however, give great weight to decisions of the Supreme Court of the United States interpreting provisions of the Constitution of the United States which are parallel to provisions of the State Constitution to be construed.” Id. at 484, 428 S.E.2d at 176. In this case, for the purpose of applying our State Constitution‘s Free Speech Clause we adopt the United State‘s Supreme Court‘s First Amendment jurisprudence.
The United States Supreme Court has long permitted certain regulations of protected speech for appropriate reasons. Elrod v. Burns, 427 U.S. 347, 49 L. Ed. 2d 547 (1976). Thus, a paid lobbyist, a member of a specialized occupation, can be required to register and disclose his or her contributors. United States v. Harriss, 347 U.S. 612, 98 L. Ed. 989 (1954). A candidate for election can be required to disclose the sources of contributions so as to prevent corruption. Buckley v. Valeo, 424 U.S. 1, 46 L. Ed. 2d 659 (1976). A publisher of a newspaper can be required to make disclosures to obtain second-class mailing privileges. Lewis Publishing Co. v. Morgan, 229 U.S. 288, 57 L. Ed. 1190 (1913). A grand jury can require disclosure of newspaper sources to aid in the prosecution of criminal activity. Branzburg v. Hayes, 408 U.S. 665, 33 L. Ed. 2d 626 (1972).
Even in the area of political speech, the United States Supreme Court has recognized that a state “indisputably has a compelling state interest in preserving the integrity and reliability of its election process.” Eu v. San Francisco County Democratic Comm., 489 U.S. 214, 231, 103 L. Ed. 2d 271, 287 (1989); e.g., Schuster v. Imperial County Airport, 109 Cal. App. 3d 887, 896, 167 Cal. Rptr. 447, 451 (1980), cert. denied, 450 U.S. 1042, 68 L. Ed. 2d 239 (1981). While “there is practically universal agreement that a major purpose of the [First] Amendment [is] to protect the free discussion of governmental affairs . . . includ[ing] discussion of candidates,” Buckley v. Valeo, 424 U.S. at 14, 46 L. Ed. 2d at 685, there is also agreement as to the compelling government interest in ensuring honest and fair elections. Burson, 504 U.S. at 199, 119 L. Ed. 2d at 14-15. Therefore, the Supreme Court has “upheld generally-applicable and evenhanded restrictions that protect the integrity and reliability of the electoral process itself.” Anderson v. Celebrezze, 460 U.S. 780, 788 n.9, 75 L. Ed. 2d 547, 557 n.9 (1983); Burson, 504 U.S. at 199, 119 L. Ed. 2d at 15.
We believe the statute before us is an example of such a evenhanded restriction. In arriving at this decision two cases decided by the United States Supreme Court have been our polar stars: Burson, 504 U.S. 191, 119 L. Ed. 2d 5, and Talley v. California, 362 U.S. 60, 4 L. Ed. 2d 559 (1960). Burson is the latest of several decisions of the Court sustaining the constitutionality of various election law reform statutes against free speech challenges. Burson holds that a state statute prohibiting the display and distribution of campaign materials and the solicitation of votes for or against a candidate or party within 100 feet from the entrance of the polling place did not violate the Free Speech Clause. A plurality of justices concluded the statute survived strict scrutiny and was necessary to serve the state‘s compelling interest in preventing voter intimidation and fraud and “in protecting the right to vote.” Burson, 504 U.S. at 206, 119 L. Ed. 2d at 20. Burson relied heavily on the history of campaign abuses which election reform statutes like the one before it were designed to curb in concluding the statute was a necessary infringement on free speech.
Yet the ordinance is in no manner so limited, nor have we been referred to any legislative history indicating such a purpose. Therefore we do not pass upon the validity of an ordinance limited to prevent these or any other supposed evils. This ordinance simply bars all handbills under all circumstances anywhere that do not have the names and addresses printed on them in the place the ordinance requires.
362 U.S. at 64, 4 L. Ed. 2d at 562. Talley thus expressly left open the question whether a more narrowly drawn ordinance would be upheld. Tennessee v. Acey, 633 S.W.2d 306. Interestingly, the dissenters in Talley (Associate Justices Clark, Frankfurter and Whittaker) cited electoral reform statutes prohibiting the distribution of anonymous campaign material directed toward political candidates as an example of valid restrictions on speech, saying
the several States have corrupt practices acts outlawing, inter alia, the distribution of anonymous publications with reference to political candidates. While these statutes are leveled at political campaign and election practices, the underlying ground sustaining their validity applies with equal force here.
362 U.S. at 70, 4 L. Ed. 2d at 566 (Clark, Frankfurter, Whittaker, JJ., dissenting).
The statute before us falls in between the ones considered, respectively, by Burson and Talley. Like the statute in Burson it is directed at serving the state‘s compelling interest in protecting the integrity of the electoral process. Like the statute in Talley it proscribes anonymity. Burson, however, involved a prohibition on all speech within certain geographic boundaries. Talley involved
Defendant and the dissenters complain that the statute covers even truthful statements, and it clearly does. Burson teaches that this alone is no ground for striking the statute, for the restrictions on speech upheld in Burson also applied to truthful campaign materials. In the context of a campaign it is necessary for accusers of candidates to identify themselves, even if they speak the truth, in order for the electorate to be able to assess the accusers’ bias and interest. Why is it that the accuser comes forward with the accusation, even if it is true? What motivates the accuser? This kind of information is required in order for the electorate to determine what weight, if any, should be given the accusation, even if it is true. The source of the charge is as much at issue as the charge itself. Our statute, then, serves the compelling state interest of “providing voters with information to aid them in assessing the weight to be given a particular statement. There does not appear to be a less restrictive means of furthering this interest, and therefore, unlike the ordinance in Talley, campaign disclosure laws cannot be said to be overly broad.” Developments—Election Law, 88 Harv. L. Rev. 1111, 1290 (1975) (emphasis supplied).
The statute, consequently, is necessary to serve a compelling state interest. Albeit a restraint on speech, it comports with the free speech guaranties in both the United States Constitution and the Constitution of North Carolina.
We are bolstered in our conclusion by decisions from other jurisdictions sustaining similar statutes against the contention that they violate free speech guaranties; the courts conclude the statutes are necessary to serve a state‘s compelling interest in protecting the integrity of the electoral process. See, e.g., Tennessee v. Acey, 633 S.W.2d at 307; United States v. Scott, 195 F. Supp. at 443; Canon v. Justice Ct., 61 Cal. 2d 446, 452, 458-59, 393 P.2d 428, 431, 416, 39 Cal. Rptr. 228, 231, 235 (1964).
[The statute] requires identification so that (1) the electorate may be better able to evaluate campaign material by examination of the competence and credibility of its source, (2) irresponsible attacks will be deterred, (3) candidates may be better able to refute or rebut charges—so that elections will be the expression of the will of an undeceived, well-informed public. It is clear that the integrity of elections, essential to the very preservation of a free society, is a matter ‘in which the State may have a compelling regulatory concern.‘... [The statute] was intended to deter the scurrilous hit and run smear attacks which are all too common in the course of political campaigns. The primary concern is not for the candidate, however, although it is clearly in the public interest to create conditions conducive to the encouragement of good citizens to seek public office. The chief harm is that suffered by all people when, as a result of the public having been misinformed and misled, the election is not the expression of the true public will.
“[A]nonymity all too often lends itself, in the context of attacks upon candidates in the preelection period, to smears, as a result of which the electorate is deceived. Identification permits confrontation and often makes refutation easier and more effective. It tends to reduce irresponsibility. It enables the public to appraise the source.”
Id. at 452-53, 459, 393 P.2d at 431-32, 435, 39 Cal. Rptr. at 231-32, 235.
In United States v. Scott, the United States District Court upheld Section 612 of Title 18 of the United States Code which reads:
195 F. Supp. at 441. While
In Tennessee v. Acey, the Supreme Court of Tennessee upheld a statute imposing criminal sanctions upon persons anonymously disseminating written statements about candidates for public office. 633 S.W.2d at 306. Recognizing the state‘s compelling interest in preserving the integrity of the electoral process and ensuring the existence of an informed electorate, the Acey Court concluded that the campaign literature disclosure law was the least restrictive means of furthering these interests. Id. at 307.
Defendant relies on Talley v. California, 362 U.S. 60, 4 L. Ed. 2d 559 (1960), and Schuster v. Imperial County Municipal Court, 109 Cal. App. 3d 887, 167 Cal. Rptr. 447 (1980), both of which we find distinguishable. We have already considered Talley and elaborated our reasons for believing that it does not control. Schuster, a California Court of Appeals case, dealt with a statute that prohibited “all anonymous political campaign literature” by all persons. 109 Cal. App. 3d at 890-91, 167 Cal. Rptr. at 448. Neither the Talley ordinance nor the Schuster statute was limited, as is our statute, to a far narrower spectrum of prohibited activity.
Finally, although the North Carolina Constitution holds freedom of speech and the press to be “great bulwarks of liberty” never
V.
[5] Defendant next contends the trial court committed reversible error by incorrectly defining the essential elements of the statute in its instructions to the jury. We agree.
a charge he intended to be derogatory to a candidate for election to the Boone Town Council, or which he calculated would affect such candidate‘s chances of election and that such publication was not signed by the party giving publicity to and being responsible for such charge it would be your duty to return a verdict of guilty of this count. . . .
(Emphasis supplied.)
Prior to delivery of the verdict sheets to the jury, defendant timely objected to the trial court‘s instructions on the ground that the trial court had “switched over from an objective standard set forth in the statute to a subjective standard. . . .” See
Defendant argues that the trial court‘s charge erroneously included a scienter requirement while no such requirement is present in the statute. Conversely, the State contends that the trial court‘s instruction required the jury to find more than the statute required and therefore placed a heavier burden on the State to prove defendant‘s guilt. We agree with defendant and conclude
“When [the trial court] undertakes to define the law, [it] must state it correctly.” State v. Earnhardt, 307 N.C. 62, 70, 296 S.E.2d 649, 654 (1982). Failure to do so may be prejudicial error sufficient to warrant a new trial. Id. In Earnhardt defendant was convicted of being an accessory after the fact of voluntary manslaughter. Id. at 65, 296 S.E.2d at 651. One item of proof necessary for a conviction as accessory after the fact is that the defendant knew the felony had been committed by the person assisted. Id. at 69, 296 S.E.2d at 654. In instructing the jury, “the trial court stated that if defendant, ‘knowing Horne and Lagree or Horne and Lagree could have committed the crime of voluntary manslaughter, assisted Horne or Lagree in escaping or attempting to escape detection, arrest or punishment by concocting a story which was not true . . . ,’ then he should be found guilty.” Upon review, this Court held that the trial court‘s instruction was reversible error. Id. at 70, 296 S.E.2d at 654. Even though this was the only error found in defendant‘s trial, the Court held that the instructions incorrectly defined a crucial element of the crime with which the defendant was charged and allowed for the possibility of confusion among the jurors. Id.
Here, as in Earnhardt, we believe the incorrect instruction was “too prejudicial to be hidden by the familiar rule that the charge must be considered contextually as a whole.” Id.
We do not agree with the trial court‘s conclusion that defendant‘s state of mind is relevant to both inquiries. Rather, we conclude the legislature drafted this statute giving the jury two distinct grounds upon which to convict. The jury could find that the pub-
In the instant case defendant testified that at the time he mailed the offending materials he did not think candidates Chase or Miller would win the election in any event. Based on this testimony, the jury could have found that the published materials were not calculated by defendant to affect either candidate‘s chances for election. If such were the case, defendant only could have been convicted if the jury determined beyond a reasonable doubt that the charge was objectively derogatory. Because, however, of the trial court‘s erroneous instructions, the jury would have been required to convict defendant upon a finding beyond a reasonable doubt that defendant only intended the materials to be derogatory even if, objectively, the jury did not consider them to be so.
Because the trial court incorrectly instructed the jury regarding one of two possible theories upon which defendant could be convicted and it is unclear upon which theory or theories the jury relied in arriving at its verdict, we must assume the jury based its verdict on the theory for which it received an improper instruction. State v. Lynch, 327 N.C. 210, 393 S.E.2d 811 (1990) (submitting case to jury on alternative theories, including one not supported by evidence, was reversible error requiring new trial); State v. Pakulski, 319 N.C. 562, 574, 356 S.E.2d 319, 326 (1987) (possibility that felony murder conviction was based on predicate felony improperly submitted to jury warranted new trial); State v. Belton, 318 N.C. 141, 162-63, 347 S.E.2d 755, 768-69 (1986) (possibility that jury relied on unsupported theory to convict defendant required new trial); Williams v. North Carolina, 317 U.S. 287, 87 L. Ed. 279 (1942) (conviction cannot stand merely because it could have been supported by one theory submitted to jury if another invalid theory was also submitted and general verdict does not specify theory upon which verdict is based).
VI.
[6] Defendant next contends the trial court‘s failure to exclude the testimony of candidates Chase and Miller relating out-of-court
During the presentation of the State‘s case, candidate Miller was directly examined as follows:
Q. Ma‘am, the people who contacted you—you said a moment ago that there were several people who called you about the flyer?
A. Yes.
Q. The people who contacted you about the flyer, did they indicate it was helpful or hurtful to your election chances?
MR. WHITTLE: Your Honor, I OBJECT to that as calling for hearsay and it‘s opinion hearsay.
THE COURT: Well, you don‘t offer it for the truth of what was stated—
MR. WILSON: No, sir—
THE COURT: —but for what they said?
MR. WILSON: For what they said.
THE COURT: OVERRULED.
Q. Yes, ma‘am, go ahead.
A. Ahh people asked if I had sent that out, and I said no I didn‘t. Ahh they were surprised, they thought maybe I had sent it out.
Q. But my question was, ma‘am, did they indicate to you whether it was helpful or hurtful to your election chances?
MR. WHITTLE: OBJECTION to that.
A. Oh, they didn‘t think it was helpful—
THE COURT: OVERRULED.
A. They did not think it was helpful at all and they were quite surprised.
Q. How many people did you talk to concerning the flyer?
A. I think about eight people that evening.
MR. WHITTLE: MOVE TO STRIKE.
THE COURT: DENIED.
Candidate Chase was examined similarly:
Q. Did you discuss, sir, with your supporters and with the voting public in Boone generally [the flyer concerning liquor by the drink]?
A. Not to as great an extent because it came later compared to the date of the election.
Q. Those that you did discuss it with, sir, did you find it helpful or derogatory to your candidacy?
MR. WHITTLE: OBJECTION, Your Honor.
THE COURT: OVERRULED.
A. That evening I only discussed it with one member of the public and he, and he found, he was, he was—the best that I can recall he said—
Q. Well, don‘t tell us what he said, but just whether or not he felt it was derogatory, whether or not you found it to be derogatory or helpful to your candidacy.
A. He found it to be derogatory.
MR. WHITTLE: OBJECTION.
THE COURT: OVERRULED.
MR. WHITTLE: MOVE TO STRIKE.
THE COURT: DENIED.
Under our Rules of Evidence, “[h]earsay is not admissible except as provided by statute or by these rules.”
We further conclude the evidence does not fall within any recognized exception to the hearsay rule. The State contends the statements were admissible as lay witness opinion testimony under
For the foregoing reasons the decision of the Court of Appeals vacating the judgment of the superior court is reversed. The case is remanded to the Court of Appeals for further remand to the superior court in order that defendant may be given a new trial.
REVERSED; REMANDED; NEW TRIAL.
Justice Parker did not participate in the consideration or decision of this case.
Justice MITCHELL dissenting.
The majority errs in its conclusion that
The statute at issue in the present case makes it a criminal offense punishable by imprisonment “[f]or any person to publish
The majority acknowledges that the statute plainly places a restriction on publications which convey truthful information to the public about important public issues—the election of public officials. Such publications constitute pure political expression which is protected by the most basic tenets of the First Amendment to the Constitution of the United States.
In N.A.A.C.P. v. Claiborne Hardware Co., the Supreme Court of the United States emphasized the importance of free debate of such public issues:
This Court has recognized that expression on public issues “has always rested on the highest rung of the hierarchy of First Amendment values.” Carey v Brown, 447 US 455, 467, 65 L Ed 2d 263, 100 S Ct 2286. “[S]peech concerning public affairs is more than self-expression; it is the essence of self-government.” Garrison v Louisiana, 379 US 64, 74-75, 13 L Ed 2d 125, 85 S Ct 209. There is a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” New York Times Co. v Sullivan, 376 US 254, 270, 11 L Ed 2d 686, 84 S Ct 710, 95 ALR2d 1412.
458 U.S. 886, 913, 73 L. Ed. 2d 1215, 1236 (1982). As a result of this “profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open,” the Supreme Court has held that even false charges, when made in relation to a public figure and without knowledge of or reckless disregard for the statement‘s falsity, are protected by the First Amendment. Hustler Magazine v. Falwell, 485 U.S. 46, 56, 99 L. Ed. 2d 41, 52-53 (1988); see also New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686 (1964). The Supreme Court has done so because “erroneous statement is inevitable in free debate, . . . it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need . . . to survive.‘” Sullivan, 376 U.S. at 271-72, 11 L. Ed. 2d at 701 (quoting N.A.A.C.P. v. Button, 371 U.S. 415, 433, 9 L. Ed. 2d 405, 418 (1963)). This nation is committed “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.” Id. at 270, 11 L. Ed. 2d at 701.
James Madison emphasized the importance of unrestricted freedom of expression concerning candidates for public office when he stated the following in his Report on the Virginia Resolutions:
“Let it be recollected, lastly, that the right of electing the members of the government constitutes more particularly the essence of a free and responsible government. The value and efficacy of this right depends on the knowledge of the comparative merits and demerits of the candidates for public trust, and on the equal freedom, consequently, of examining and discussing these merits and demerits of the candidates respectively.”
Sullivan, 376 U.S. at 275 n.15, 11 L. Ed. 2d at 703 n.15 (quoting 4 Elliot‘s Debates on the Constitution 575 (1876)). The Supreme Court of the United States also has recognized the importance of the right to freely discuss candidates for political office:
[D]ebate on the qualifications of candidates [is] integral to the operation of the system of government established by our Constitution. . . . In a republic where the people are sovereign, the ability of the citizenry to make informed choices among
candidates for office is essential; for the identities of those who are elected will inevitably shape the course that we follow as a nation.
Buckley v. Valeo, 424 U.S. 1, 14-15, 46 L. Ed. 2d 659, 685 (1976) (per curiam). “Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs. This of course includes discussions of candidates.” Mills v. Alabama, 384 U.S. 214, 218, 16 L. Ed. 2d 484, 488 (1966). “It can hardly be doubted that the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office.” Buckley, 424 U.S. at 14-15, 46 L. Ed. 2d at 685 (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272, 28 L. Ed. 2d 35, 41 (1971)) (emphasis added).
The right to anonymity has long been recognized in this country as a necessary component of the constitutional rights of free speech and a free press. In Talley v. California, the Supreme Court of the United States stressed that “[a]nonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all.” 362 U.S. 60, 64, 4 L. Ed. 2d 559, 563 (1960). Even before the Revolutionary War, many authors in England, including such well-known authors as Defoe, Swift, and Johnson, published anonymous pamphlets criticizing political affairs. Notes and Comments, The Constitutional Right to Anonymity: Free Speech, Disclosure and the Devil, 70 Yale L. Rev. 1084, 1085 (1961) (citing Courtney, The Secrets of Our National Literature 151-77 (1908)). By the time the First Amendment to the Constitution of the United States was proposed by Congress in 1789, anonymously published political criticisms were a familiar source of information. Id. Both before and after the First Amendment became effective on 15 December 1791, the founders of this country often were compelled to exercise their 2
The type of communications restricted by
The statute at issue here, among other things, makes it a criminal offense punishable by imprisonment for any person to publish a completely truthful charge against any candidate for nomination or election to office, unless the person signs the publication.
In Burson v. Freeman, the Supreme Court of the United States recognized that it has “upheld generally applicable and evenhanded restrictions that protect the integrity and reliability of the electoral process itself.” Id. at 199, 119 L. Ed. 2d at 15 (quoting Anderson v. Celebrezze, 460 U.S. 780, 788, n.9, 75 L. Ed. 2d 547, 557-58, n.9 (1983)). The statute under challenge in the present case, however, clearly is neither generally applicable nor evenhanded. As construed by the majority, the statute prohibits anonymous publication of truthful charges against a candidate, but does not reach the anonymous publication of untruthful praise for a candidate. Surely this statute cannot be an example of the sort of “generally applicable and evenhanded restrictions” protecting the integrity of the electoral process which the Supreme Court of the United States finds constitutionally acceptable.
In Burson, a decision relied upon by the majority here, the Supreme Court of the United States upheld a statute forbidding political campaigning at polling places on election day. In doing so, however, the plurality opinion for the Court expressly emphasized that the Court‘s “examination of the evolution of election reform, both in this country and abroad, demonstrates the necessity of restricted areas in or around polling places.” Id. at 208, 119 L. Ed. 2d at 15. It is clear to me that no similar demonstration of necessity for the restrictions embodied in the statute under attack here has been or could be made.
In my view, the State has made nothing remotely approaching a showing in the present case that the statute at issue is necessary to serve a compelling state interest or that it is narrowly drawn to achieve that end. Instead, it is apparent to me that the statute in question, which prohibits anonymous but truthful charges against political candidates, falls within the class of statutes properly deemed
I agree that the State has a compelling interest in maintaining the integrity of the electoral process and in encouraging openness, honesty and fairness in elections. This state interest itself is grounded in one of the First Amendment‘s most fundamental purposes: to encourage unfettered discussion on the qualifications of candidates for public office in order to enable the citizenry to make informed choices among candidates. See Buckley v. Valeo, 424 U.S. at 14-15, 46 L. Ed. 2d at 685. However, the burdensome restrictions4 of
The State acknowledges in its brief before this Court that the purpose of the statute is to eliminate “the opportunity for
The statute as construed by the majority here will deter many individuals from publishing negative facts about a candidate which are clearly true and relevant to that candidate‘s fitness for public office. The State acknowledges that the statute has such an effect and even suggests that it is a desirable effect. The State points out in its brief before this Court that “disparaging and belittling material about a particular candidate may often be true; its very truthfulness can make it more derogatory and hurtful than lies.” Although perhaps an accurate analysis, this is all the more reason
Despite the fact that the statute restricts individuals wishing to publish truthful but anonymous charges about political candidates and, thereby, places a limitation upon their exercise of First Amendment rights, the State has offered no evidence in support of its contention that disclosure of the author‘s identity is necessary to enable voters to evaluate the reliability or weight to be given such charges. One commentator, citing several studies indicating that voters are not at all subject to being so easily misled, has concluded, to the contrary, that “[i]t seems unlikely that our media-saturated electorate will be duped into self-destruction by nefarious forces” which are concealing their identities. Kreimer, 140 U. Pa. L. Rev. at 88.
The State has not shown that voters are more easily misled by anonymous statements than by statements which are attributed. However, even if it is assumed that voters are more likely to be misled by anonymous statements, the statute as interpreted by the majority permits an individual to make laudatory anonymous statements about a candidate freely. Therefore, the statute results in “viewpoint discrimination” and unquestionably is a “content-based” regulation of expression. R.A.V. v. St. Paul, 505 U.S. 377, 120 L. Ed. 2d 305 (1992). “The First Amendment generally prevents government from proscribing speech . . . because of disapproval of the ideas expressed. Content-based regulations are presumptively invalid.” Id. at 382, 120 L. Ed. 2d at 317 (emphasis added). Therefore, for example, “the government may proscribe libel; but it may not make the further content discrimination of proscribing only libel critical of the government. Id. at 384, 120 L. Ed. 2d at 318. The State has offered no evidence showing that false anonymous statements praising a particular candidate are less damaging to the integrity of the electoral process than the truthful “charges” of wrongdoing by a candidate which are made imprisonable offenses by the statute. Indeed, it is inconceivable that any such
The State also has failed to show that disclosure of the author‘s identity is necessary to enable candidates to refute false statements. A candidate can rebut allegations contained in negative campaign material without knowing the identity of the author of that material. Furthermore, although the candidate may have difficulty showing the bias of an unidentified author, the fact that the author of a statement is unwilling to reveal his or her identity in itself serves to put every recipient of voting age on notice that the statement may be less believable than one which has been signed.
Finally, none of the State‘s purported justifications for the statute at issue explain why a requirement that truthful publications be signed is necessary to promote openness, honesty and fairness in the electoral process. It would seem that anonymous but truthful and relevant information about the candidates would promote rather than detract from that goal. The State has not shown that the criminal penalties imposed by
In sum, the type of “danger” presented by the publication of a truthful anonymous statement about a candidate for public office which is an imprisonable criminal offense under the statute at issue “‘is precisely one of the types of activity envisioned by the Founders in presenting the First Amendment for ratification.‘” Landmark Communications v. Virginia, 435 U.S. 829, 845, 56 L. Ed. 2d 1, 14 (1978) (quoting Wood v. Georgia, 370 U.S. 375, 388, 8 L. Ed. 2d 569, 579 (1962)). The statute criminalizes protected “core” or fundamental political expression of a type which cannot be prohibited and thereby violates the guarantees of the First Amendment to the Constitution of the United States.
Additionally, and of equal constitutional importance, this statute permits the imprisonment of a person solely because of the content
Until today, I thought that no reasonable lawyer or judge would have imagined that a statute such as the one in question here could possibly pass First Amendment scrutiny. Obviously, I was wrong in this regard as my colleagues on this Court ordinarily are reasonable people.
Before the majority upholds this statute allowing defendants to be imprisoned for publishing political pamphlets such as those at issue in the present case, it would do well to recall the following words of James Madison, who understood as well as anyone ever has the evils which led to the adoption of the First Amendment:
Some degree of abuse is inseparable from the proper use of every thing, and in no instance is this more true than in that of the press.
It has accordingly been decided . . . that it is better to leave a few of its noxious branches to their luxuriant growth, than by pruning them away, to injure the vigor of those yielding the proper fruits.
Renwick v. News and Observer, 310 N.C. 312, 326, 312 S.E.2d 405, 413, cert. denied, 469 U.S. 858, 83 L. Ed. 2d 121 (1984) (quoting 4 Elliot‘s Debates on the Constitution 571 (1876 Ed.)). I am convinced that Madison and the other founders of our nation believed that the First Amendment was adopted to prohibit the enactment of statutes precisely such as the one which the majority of this Court declares constitutionally acceptable in the present case.
The decision of the majority to uphold this flagrant violation of the First Amendment opens a sad chapter in the history of this Court. I can only pray that this chapter and the inevitable harm that will result to this State‘s people and their government will be brief.
Notes
In the present case, the State asserts neither of the interests present in Buckley in support of