Editor’s Note: This post has been updated in response to helpful feedback from a reader.
A few weeks ago, my colleague Jill Moore asked me to participate in a recorded interview addressing whether certain disturbing or threatening behavior from citizens directed at public officials and employees could support criminal prosecution. Jill is an expert in public health law so the questions she posed related primarily to concerns raised by officials and employees who work in that field. More recently, another colleague advised that social services employees had similar questions. I thought it might be helpful to share here my thoughts on the questions they posed.
Spoiler alert. I began my video interview with Jill with a spoiler alert, and I’ll repeat it here. There are several state statutes that prohibit threatening and harassing another person – and those statutes apply to public health officials and other public employees just as they would anyone else. Now for the spoiler: The threshold for establishing that disturbing and distasteful statements made to or about a public health official or other public employee constitute a criminal threat or harassment may be higher than some think.
Statutes governing threats and harassment. The crimes most often implicated in the circumstances I’ve been asked about are the following:
- Using threatening language on the telephone (G.S. 14-196(a)(2)) (Class 2 misdemeanor)
- Repeated telephone calls to harass (G.S. 14-196(a)(3)) (Class 2 misdemeanor)
- Using electronic mail or communication to threaten or extort (G.S. 14-196.3(b)(1)) (Class 2 misdemeanor)
- Repeated use of electronic mail or communication to extort (G.S. 14-196.3(b)(2)) (Class 2 misdemeanor)
- Communicating threats (G.S. 14-277.1) (Class 1 misdemeanor)
- Misdemeanor stalking (G.S. 14-277.3A(d)) (Class A1 misdemeanor)
Threatening to kill or inflict serious bodily injury on a legislative officer, executive officer, or court officer is a felony offense, see G.S. 14-16.7, but this statute does not cover threats against public officials or employees generally.
Now for the questions:
- A community member posts to her social media account on several occasions the home address and personal telephone number of the public health director. Is this a crime?
This does not appear to constitute a crime. North Carolina’s stalking statute, G.S. 14-277.3A, prohibits communicating to or about a person on more than one occasion if it causes the person to fear for their safety or suffer substantial emotional distress. Even assuming that these postings would cause a reasonable person to fear for her safety or to suffer substantial emotional distress, prosecuting a person for these posts raises First Amendment concerns. Content-based restrictions on speech must satisfy strict scrutiny, meaning that the State must show not only that the measure addresses a compelling interest, but also that it is the least restrictive means of doing so. The Court of Appeals determined in State v. Shackelford, 264 N.C. App. 542 (2019) (discussed here), that G.S. 14-277.3A was unconstitutional as applied to a defendant who repeatedly posted on the internet about a woman with whom he fantasized having a romantic relationship. Accepting for the sake of argument that the statute 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 the woman referenced in the posts 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 the woman.
The posts at issue in Shackelford referred to a private citizen; yet the Court still found the statute unconstitutional as applied, noting that few content based restrictions survive strict scrutiny. In so holding, the Court referenced the North Carolina Supreme Court’s opinion in State v. Bishop, 368 N.C. 869 (2016) (discussed here), ruling facially unconstitutional 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 intimidate or torment a minor. The Bishop Court reasoned that “as to both the motive of the poster and the content of the posting, the statute sweeps far beyond the State’s legitimate interest in protecting the psychological health of minors.” Bishop, 368 N.C. at 878.
Given the appellate courts’ conclusion that the State’s interest in preventing the escalation of stalking and in protecting the psychological health of minors did not justify this sort of content-based regulation, it is difficult to imagine courts reaching a different conclusion in the context of speech about public employees that does not rise to the level of a threat.
What if, in addition to publicizing the health director’s personal information, the community member encourages others to protest at the health director’s home?
G.S. 14-277.4A makes it a Class 2 misdemeanor to engage in targeting picketing when the person knows or should know that the manner in which they are picketing would cause a reasonable person to fear for that person’s safety or the safety of the person’s family members or close personal associates or to suffer substantial emotional distress. Targeted picketing is picketing that is specifically directed toward a residence or an occupant of a residence and that takes place on that portion of a sidewalk or street in front of the residence, in front of an adjoining residence, or on either side of the residence.
In addition to the potential for criminal prosecution, a person subjected to targeted picketing may seek an injunction to prevent threatened violations of these provisions. Engaging in targeted picketing in violation of such an injunction constitutes criminal contempt, which is punishable by a term of imprisonment of not less than 30 days and no more than 12 months.
G.S. 14-277.4A does not prohibit general picketing that proceeds through residential neighborhoods or that proceeds past residences.
In addition, if uninvited persons were to arrive on a public employee’s (or anyone else’s) lawn and refuse to leave if asked to do so, that would be the crime of second-degree trespass under G.S. 14-159.13, a Class 3 misdemeanor.
Or to call the director repeatedly?
As noted earlier, G.S. 14-196(a)(3) prohibits repeated telephone calls to harass. A person violates these provisions if he calls a person repeatedly for purposes of abusing, annoying or harassing that person. If that is the purpose of the call, there may be a crime. But calling a health director repeatedly to insist, for example, that the director cease pandemic controls might not be for the purpose of abusing, annoying or harassing the person. It might be to express the caller’s viewpoint, even though that expression may turn out to be annoying to the recipient.
- A community member repeatedly calls the health director and either speaks to the director or leaves a voice message saying that citizens still have their Second Amendment rights.
This call may well be for the purpose of abusing, annoying or harassing the person. If so, that is the type of violation discussed above, repeated telephone calls to harass, a Class 2 misdemeanor.
It is not clear whether this conduct might also constitute the crime of communicating threats, which requires a willful threat of physical injury. The language mentioned in the scenario is a vaguely ominous and disturbing, but arguably falls short of a direct threat. Perhaps the fact that it is repeated over and over makes it more obviously a threat. To communicate a threat in violation of G.S. 14-277.1, the person must communicate a willful threat of physical injury or property damage such that a reasonable person would believe the threat is likely to be carried out. In addition, the person threatened must believe the threat will be carried out. One might ask in this example what exactly the caller is threatening? If we can’t figure that out, it might not be a threat.
- During the public comment period of a board of county commissioners meeting, a citizen concludes her remarks by pointing at the health director and saying, “We still have our Second Amendment rights and we know where you live.”
We are getting warmer on the criminal conduct front. This comment still is somewhat vague, but it appears more threatening when combined with the address. This could well support charges for communicating threats.
- Do you have any last words for health directors and other government employees about pursuing criminal remedies when they experience threats or harassment?
Yes. Please don’t construe my caution regarding First Amendment concerns to mean that there is no recourse for threats made toward government employees. That is not true. Indeed, the North Carolina Supreme Court recently held in State v. Taylor, 379 N.C. 589 (2021) (discussed here), that the defendant could be criminally prosecuted for threatening to kill a court officer in violation of G.S. 14-16.7 based on comments he posted on social media. The defendant in that case went on a Facebook rant about the local district attorney after she declined to institute a criminal prosecution following the death of a child. The defendant’s comments were disturbing. In one of them, he promised that the district attorney “will be the first to go” when a purportedly impending “rebellion against our government” occurs. Id. at 590. In another comment, he declared that “[i]f [District Attorney Welch] won’t do anything, then the death to her as well.” Id. He also made numerous references to the firearms that he owned and his willingness to use them against law enforcement officers if he were ever “raided.” Id.
The Taylor Court noted that true threats may be criminally punished as they are a constitutionally proscribable category of expression not protected by the First Amendment. The Court defined a true threat as “an objectively threatening statement communicated by a party which possesses the subjective intent to threaten a listener or identifiable group.” Id. at 605. The Court explained that “[w]hen an individual communicates a true threat, the First Amendment allows the State to punish the individual because a true threat is not the type of speech [which is] indispensable to decision making in a democracy.” Id. (internal quotations and citations omitted). The Taylor Court went on to determine that the State’s evidence was sufficient to survive a motion to dismiss and to warrant submission of the case to the jury.
Thus, it is clear that threats against public officials and employees may be prosecuted and that social media rants, even on matters of public concern, may be criminally prosecuted if they constitute a true threat.
Other remedies. For conduct that falls short of a threat, there may be remedies other than criminal prosecution, including the ability in certain circumstances involving harassment to seek a civil no-contact order.
Those types of orders often are referred to as 50C orders. A person may seek such an order in district court based on allegations of stalking – which includes harassing another person on more than one occasion without legal purpose and with the intent to place the person in reasonable fear for the person’s safety. A court granting that kind of order may order a person not to contact the victim.