In recent months, I have received several questions about what North Carolina’s cyberstalking statute covers and whether it may infringe on First Amendment free speech rights. This post addresses several potential legal issues under the statute.
Background. The statute is G.S. 14-196.3. Subsection (b) makes it a crime to:
(1) Use in email or electronic communication any words or language threatening to inflict bodily harm to any person or to that person’s child, sibling, spouse, or dependent, or physical injury to the property of any person, or for the purpose of extorting money or other things of value from any person.
(2) Email or electronically communicate to another repeatedly, whether or not conversation ensues, for the purpose of abusing, annoying, threatening, terrifying, harassing, or embarrassing any person.
(3) Email or electronically communicate to another and to knowingly make any false statement concerning death, injury, illness, disfigurement, indecent conduct, or criminal conduct of the person emailed or of any member of the person’s family or household with the intent to abuse, annoy, threaten, terrify, harass, or embarrass.
(4) Knowingly permit an electronic communication device under the person’s control to be used for any purpose prohibited by this section.
(5) Knowingly install, place, or use an electronic tracking device without consent, or cause an electronic tracking device to be installed, placed, or used without consent, to track the location of any person.
In summary, subsection (b) prohibits the use of electronic communications
- To threaten people or property [(b)(1)]
- Repeatedly to harass a person [(b)(2)], or
- To make false statements to harass a person [(b)(3)]
The above summary leaves out subdivision (b)(4) because it relates back to (b)(1)-(3), and subdivision (b)(5) because it focuses on the nonconsensual use of tracking devices, is different in character from the remaining subdivisions, and is not relevant to today’s post.
The statute has been in effect since 2000. The only significant change over time was the 2015 addition of the tracking device provisions in subdivision (b)(5). S.L. 2015-282.
The statute has not been significantly interpreted or reviewed by our appellate courts. However, it is related to the harassing phone calls statute, G.S. 14-196, which prohibits similar conduct by telephone. One difference between the two is that the harassing phone calls statute purports to prohibit the use of “any words or language of a profane, vulgar, lewd, lascivious or indecent character, nature or connotation.” G.S. 14-196(a)(1). This provision was deemed unconstitutional in Radford v. Webb, 446 F. Supp. 608 (W.D.N.C. 1978) (stating that “[s]uch a sweeping prohibition would reach comments made in the course of heated argument or expressions of justified indignation just as easily as it could be applied to the traditional obscene phone call”), aff’d, 596 F.2d 1205 (4th Cir. 1979). Perhaps because of the Radford decision, no similar provision appears in the cyberstalking statute.
Threats under subdivision (b)(1). The questions I have received generally have not focused on subdivision (b)(1) of the cyberstalking statute, which concerns threatening language. However, for completeness, I will briefly recap the law we have in this area.
“True threats” are not protected by the First Amendment and may be criminalized. The key North Carolina precedent on true threats is State v. Taylor, 379 N.C. 589 (2021). In that case, the court ruled that true threats must involve “both an objective and a subjective element.” That is, the communication must be objectively threatening and the speaker must intend to threaten. The subsequent Supreme Court case of Counterman v. Colorado, 600 U.S. 66 (2023), ruled that the mental state required for the subjective component of true threats analysis is recklessness – the speaker must show a conscious disregard of the risk that his or her speech may cause harm.
Taylor recognized that some facially threatening language may be “hyperbole” or otherwise fail to rise to the level of a true threat. A case illustrating that idea is In re C.S., 297 N.C. App. 317 (2024), where a juvenile was adjudicated delinquent for threating to commit an act of mass violence on educational property after he wrote on Snapchat “IMMA SHOOT UP [a school].” The Court of Appeals determined that this was not a true threat given that the juvenile also wrote that it was “a joke” and that he did not own a gun.
The requirement that the defendant “electronically communicate to another.” Many of the questions I have received concern negative online speech, including social media posts and statements made in the comments section of online publications. Might content of this kind support charges under subdivision (b)(2) (repeated harassment) or (b)(3) (false statements to harass)? A threshold concern is that those parts of the cyberstalking statute require that the defendant “communicate to another.” Arguably, posts that are posted for anybody – or nobody – to see rather than being directed at a specific person are communications about another rather than communications to another.
The distinction between communications directed at a person and communications not so directed was underscored in Judge Murphy’s concurring opinion in State v. Shackelford, 264 N.C. App. 542 (2019). In that case, the court reversed a defendant’s convictions of (regular) stalking that were based largely on social media posts. Judge Murphy wrote that “the nature of these posts cannot be conduct that serves as the basis for a stalking conviction” and stated that a social media post that “is not aimed or directed at a single person” generally is protected by the First Amendment. Judge Murphy cited Eugene Volokh, One-to-One Speech vs. One-to-Many Speech, Criminal Harassment Laws, and “Cyberstalking,” 107 Nw. U. L. Rev. 731 (2013), which notes that “laws . . . aimed at restricting [harshly critical] speech to a person, not speech about a person . . . have generally been upheld against First Amendment challenge,” but argues that laws restricting speech to the general public are often unconstitutional.
Given the phrasing of the cyberstalking statute and the background First Amendment concerns, some broadcast social media posts and similar communications may be unable to support a cyberstalking charge. Whether a particular communication may be criminalized under the statute may depend on details like whether a person is tagged in the communication, or even whether the communication is phrased in a manner that makes it seem directed at an individual. In the absence of controlling precedent, it may be wise to proceed cautiously in this area.
Communications intended to annoy or embarrass. Based on the inquiries I have received, it is common for individuals who have been the focus of negative online content to seek cyberstalking charges based on claims that the content is intended to annoy or to embarrass them. It is true that G.S. 14-196.3(b)(2) and (b)(3) potentially criminalize certain communications based on the speaker’s intent to “embarrass” or “annoy” the object of the communications, but the First Amendment may not allow mere embarrassment or annoyance to support criminalization. In State v. Bishop, 368 N.C. 869 (2016), the court found a prior version of the cyberbullying statute, G.S. 14-458.1, to violate the First Amendment. Applying strict scrutiny, the court found that the statute served a compelling government interest in protecting children from online abuse, but was not sufficiently tailored to survive strict scrutiny. It wrote:
[N]either intimidate” nor “torment” [terms used to define the intent required by the law] is defined in the statute, and the State itself contends that we should define “torment” broadly to reference conduct intended “to annoy, pester, or harass.” The protection of minors’ mental well-being may be a compelling governmental interest, but it is hardly clear that teenagers require protection via the criminal law from online annoyance.
The Bishop court seemed to think that the risk of being annoyed is simply part of the price of the First Amendment. A similar argument would seem to apply to the risk of being embarrassed.
Some clearly protected speech might be annoying or embarrassing to some recipients. For example, if neighbor A catches neighbor B stealing from neighbor A’s vegetable garden and posts about it several times on the neighborhood listserv, that might be intended to embarrass neighbor B, and might in fact embarrass neighbor B. But so what? Neighbor B deserves to be embarrassed and neighbor A is entitled to shame neighbor B.
For that reason, I am skeptical of cyberstalking charges based on communications that are alleged primarily to have “annoyed” or “embarrassed” a complainant. Cf. Rynearson v. Ferguson, 355 F.Supp.3d 964 (W.D. Wash 2019) (a citizen’s “harsh” criticism and ridicule of local officials posted on Facebook led to state cyberstalking charges; a federal court ruled that the statute likely violated the First Amendment by criminalizing conduct like this that was intended only to “embarrass” others, stating that “the Supreme Court has consistently classified emotionally distressing or outrageous speech as protected, especially where that speech touches on matters of political, religious or public concern”). By contrast, charges based on conduct that is intended to achieve other, more severe purposes listed in subsection (b)(3) – like abusing or terrifying the target of the communication – may be more likely to survive constitutional challenges.
The safe harbor in subsection (e). I haven’t been asked about subsection (e) of the statute, but it is interesting. It provides:
This section does not apply to any peaceable, nonviolent, or nonthreatening activity intended to express political views or to provide lawful information to others. This section shall not be construed to impair any constitutionally protected activity, including speech, protest, or assembly.
The second sentence of the provision seems unnecessary as the Supremacy Clause already ensures that a state criminal statute cannot reach “constitutionally protected activity.” As to the first sentence, I’m a little unsure what effect it is intended to have. Read literally, it could exempt political communications and those concerning “lawful information” from the reach of the statute, even if intended to abuse, annoy, terrify, harass, or embarrass, so long as such communications are not violent or threatening. Given the potential breadth of the term “lawful information,” that could substantially undercut the purpose of the statute. I will be interested to see how the courts construe that sentence.
Conclusion. The cyberstalking statute attempts to protect North Carolina residents from harmful speech without infringing on free speech rights. As set forth above, my sense is that it sweeps a bit too broadly in some of its particulars, but of course, definitive guidance and interpretation can come only from the courts. If and when such guidance is issued, we’ll cover it here on the blog.
