Yesterday the court of appeals vacated Brady Lorenzo Shackelford’s convictions for felony stalking on the basis that the prosecution of Shackelford for violating G.S. 14-277.3A impermissibly infringed upon his constitutional right to free speech. This post will review the court’s opinion in State v. Shackelford, ___ N.C. App. ___ (March 19, 2019), consider how it might affect future prosecutions, and suggest statutory amendments to stave off future constitutional challenges.
What is felony stalking? A person is guilty of stalking if he or she
(2) without legal purpose
harasses another person on more than one occasion or
engages in a course of conduct directed at a specific person
(3) knowing that the harassment or course of conduct would cause a reasonable person to
fear for the person’s safety or the safety of the person’s immediate family or close personal associates or
suffer substantial emotional distress by placing that person in fear of death, bodily injury, or continued harassment.
Harassment is “[k]nowing conduct, including written or printed communication or transmission . . . telephonic communication . . . and electronic mail messages or other computerized or electronic transmissions directed at a specific person that torments, terrorizes or terrifies that person and that serves no legitimate purpose.” G.S. 14-277.3A(b)(2).
A course of conduct is “[t]wo or more acts, including, but not limited to, acts in which the stalker directly, indirectly, or through third parties, by any action, method, device, or means, is in the presence of, or follows, monitors, observes, surveils, threatens, or communicates to or about a person, or interferes with a person’s property.” G.S. 14-277.3A(b)(1).
Stalking generally is a Class A1 misdemeanor. If, however, a person commits the offense of stalking after having previously been convicted of a stalking offense, the offense is a Class F felony. And stalking while a court order prohibiting stalking is in place is a Class H felony. G.S. 14-277.3A(d).
Facts in Shackelford. Brady Shackelford met “Mary” (a pseudonym) in April 2015 at a church service in Charlotte. Mary worked for the church’s communications department and briefly chatted with Shackelford before the service began. Two weeks later, Shackelford emailed Mary asking for help with a company communications plan. Mary said she would be happy to help him and suggested a time to meet. Shackelford followed up with an email stating that he would pay Mary “100K out of the convertible note proceeds AND take [her] out to dinner at any restaurant in Charlotte.” This email “set off a lot of red flags ” for Mary. She emailed Shackelford to cancel the meeting. Shackelford tried to reschedule. Mary said she would not be able to meet and instructed Shackelford to contact her boss with further questions.
Two weeks later, Shackelford mailed a five-page handwritten letter to Mary at work telling her, among other things, that when he saw her he thought he had found his soul mate, that he was “highly attracted” to her and asking her to go on a date.
A week after that, Shackelford mailed a seven-page handwritten letter to Mary at her home address.
Mary showed both letters to her supervisors and asked for their help. A church minister contacted Shackelford in June 2015 and told him to stop contacting Mary.
That same month, Mary discovered posts that Shackelford had made on his Google Plus account (which was public) referring to her by name. He wrote that God had chosen Mary to be his soul mate and that he wanted God to please make Mary his wife. After the minister contacted Shackelford, he continued to post about his desire for Mary and his belief that she was his soul mate, but did not use her full name. (One post used her initials and another used a shortened version of her name.)
Then, in August, Mary received a box of cupcakes at her work with a note stating: “I never properly thanked you for the help you gave me regarding my company’s communication plan, so, with these cupcakes, please accept my thanks.”
After she received the cupcakes, Mary filed a police report. Shackelford was subsequently charged with and arrested for misdemeanor stalking. Nevertheless, he continued to post missives about his desire for Mary on his Google Plus account.
Mary petitioned for and was granted a no contact order on September 1, 2015. The order prohibited Shackelford from contacting Mary and from “posting any information about her on social media.” Apparently undeterred, Shackelford continued to post, referring to Mary on multiple occasions as his “future wife” and on one occasion as his “wife.” In November and December 2015, Shackelford emailed one of Mary’s friends, referencing Mary and the protective order.
Procedural history. Based on the posts and emails, Shackelford was indicted for eight counts of stalking. Four of the counts alleged felony stalking based on Shackelford’s conviction in Virginia in 1992 for stalking. The other four alleged felony stalking based on violations of the no-contact order. The trial judge dismissed the latter counts based upon its concern that the language in the no-contact order prohibiting Shackelford from posting about Mary on social media was unconstitutional. The jury convicted Shackelford of the remaining four counts.
Shackelford appealed, alleging that prosecuting him for the content of his posts and emails violated his constitutional right to free speech.
Analysis. The court of appeals first noted that posting information on the internet is speech and that the government generally has no power to restrict speech based on its content. Laws that target such speech are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve a compelling state interest.
Do free speech protections apply? Limited categories of speech are, however, excluded from protection under the First Amendment and its state constitutional counterpart. Speech that is integral to criminal conduct is among the categories excluded from protection, and the State argued that Shackelford’s speech fell within this exclusion. The court of appeals disagreed.
The State’s theory of criminal culpability was that Shackelford’s posts amounted to a course of conduct prohibited by the stalking statute. A course of conduct consists of acts in which the stalker communicates to or about a person. The court reasoned that Shackelford’s posts were not integral to some additional criminal conduct. Instead, they were the criminal conduct. Because Shackelford’s speech itself was the crime, the court determined that Shackelford’s right to free speech was directly implicated by his prosecution.
Strict scrutiny. Having determined that Shackelford’s speech was protected by the state and federal constitution, the court considered whether the content-based restrictions in G.S. 15A-277.3A were narrowly tailored to serve a compelling government interest. Accepting for the sake of argument that G.S. 15A-277.3A served a compelling government interest by preventing the escalation of stalking into more dangerous behavior, the court nevertheless determined that applying the statute to Shackelford’s posts was not the least restrictive means of accomplishing that goal. The court noted that Mary had already sought and received a protective order that prohibited Shackelford from approaching or contacting her. That order was a means less restrictive than criminal prosecution by which the State could prevent Shackelford from engaging in a criminal act against Mary.
Shackelford cited as support the North Carolina Supreme Court’s determination in State v. Bishop, 368 N.C. 869 (2016) (discussed here), that provisions of the cyberbullying statute that made it unlawful to post on-line private, personal or sexual information about a minor with the intent to intimate or torment a minor failed strict scrutiny. Bishop concluded that the statute swept “far beyond the State’s legitimate interest in protecting the psychological health of minors[,]” stating that while “protection of minors’ mental well-being may be a compelling governmental interest . . . it is hardly clear that teenagers require protection via the criminal law from online annoyance.” Id. at 878–79 (2016).
Shackelford also cited favorably People v. Relerford, 104 N.E.3d 341(Ill. 2017), a case in which the Supreme Court of Illinois determined that provisions of its state stalking statute that prohibited two or more communications “to or about” a person that would cause a reasonable person to suffer emotional distress were unconstitutionally overbroad. The Relerford court reasoned that such language could be construed to prohibit a person from attending a town meeting at which he or she repeatedly complained about pollution caused by a local business owner and advocated for a boycott of the business. A person could be prosecuted, the court said, if he or she persisted in complaining after being told to stop by the business owner and the person knew or should knew that the complaints would cause the business owner to suffer emotional distress due to the economic impact of a possible boycott.
Unlike Releford and Bishop, the Shackelford court did not strike down provisions of the stalking statute as overbroad. Instead, it ruled the provisions unconstitutional as applied to Shackelford’s conduct. But even though the statute was not ruled facially unconstitutional, the court’s holding effectively bars any stalking prosecution founded solely on indirect, public communication about a person.
How might the statute be amended? Many provisions of the stalking statute regulate conduct rather than speech. For example, the course of conduct prohibited by the statute includes following, monitoring, observing, surveilling or threatening a person. None of those prohibitions raise constitutional concerns.
Similarly, the statute’s provisions prohibiting distressing and unwanted one-to-one speech are not of particular constitutional concern. Judge Murphy’s concurrence in Shackelford emphasized this point, citing Eugene Volokh, One–to–One Speech vs. One–to–Many Speech, Criminal Harassment Laws, and “Cyberstalking,” 107 Nw. U. L. Rev. 731, 742 (2013) (“[Laws addressing telephone harassment, stalking, and unwanted mailings] have one thing in common: In the great bulk of their applications, they restrict what one may call ‘unwanted one-to-one’ speech – speech said to a particular person in a context where the recipient appears not to want to hear it, whether because the recipient has expressly demanded that the speech stop or because the speaker intends to annoy or offend the recipient. The laws are aimed at restricting speech to a person, not speech about a person. And that is the context in which they have generally been upheld against First Amendment challenge.”)).
To alleviate constitutional concerns of the sort that arose in Shackelford, the General Assembly could amend G.S. 15A-277.3A to eliminate the prohibition against “communicat[ing] to or about a person.” This would remove public statements about a person from the statute’s reach as well as the town-hall business-owner type of communication referenced in Releford.