“True Threats” After Taylor

Near the end of last year, the North Carolina Supreme Court decided State v. Taylor, 2021-NCSC-164, 866 S.E.2d 740 (2021), and we summarized the opinion here. This post considers the potential impact of Taylor on other offenses involving threatening speech, and addresses a couple lingering questions that may arise in future cases.

Recap and Holdings

Taken together, the opinions, concurrences, and dissents issued by the Court of Appeals and Supreme Court in this case span nearly two hundred pages. A healthy portion of both opinions was devoted to reviewing U.S. Supreme Court precedent interpreting the First Amendment in relation to anti-threat statutes. Without attempting to repeat all of that analysis here, both opinions concluded that bedrock principles of free speech obligate the courts to ensure that only “true threats” are prohibited under such laws.

Applying those principles to the key question of whether the defendant’s allegedly threatening statements in Taylor were a “true threat,” the state Supreme Court’s holding was pretty straightforward: “we define 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., 866 S.E.2d at 753. Under that definition, “we determine that the State is required to prove both an objective and a subjective element in order to convict defendant under N.C.G.S. § 14-16.7(a).” Id. at 755.

Therefore, the higher court’s task on review was to determine whether the lower appellate court “erred in concluding that the State presented insufficient evidence to meet its burden on both the objective and subjective prong” to withstand a motion to dismiss. Id. The majority concluded that the state did present sufficient evidence under this standard, but remanded the case for a new trial to allow “a properly instructed jury” to decide the case. Id. at 758.

That’s a brief summary of the summaries, but there’s more to discuss.

Applicability to Other Threat Offenses

The defendant in Taylor was charged with violating G.S. 14-16.7(a), which makes it a felony to knowingly and willfully threaten to kill or inflict serious bodily injury on an executive, legislative, or court officer because of the exercise of his or her duties. Although the state Supreme Court’s opinion ostensibly only addressed that one particular statute, the standards laid out by the court seem to have implications for other offenses that criminalize threatening speech. The court itself recognized that “speakers need clarity on the type of communication which constitutes a true threat so that they can engage in protected First Amendment activities while ensuring their speech is lawful.” In fact, even before Taylor, the “true threat” doctrine was already beginning to show up in a few North Carolina cases involving anti-threat statutes. See, e.g., State v. Bishop, 368 N.C. 869 (2016), fn. 3; State v. Mylett, 262 N.C. App. 661 (2018) (dissent); State v. Benham, 222 N.C. App. 635 (2012) (unpublished).

With Taylor now decided, a more direct reevaluation of the elements and burden of proof for other criminal offenses under a “true threat” standard is already underway. See In re Z.P., 2021-NCCOA-655 (Dec. 7, 2021) (summary available here). In this juvenile case, the court first reviewed a delinquency adjudication for making a threat of mass violence at school in violation of G.S. 14-277.6. In re Z.P. was decided while Taylor was still pending at the state Supreme Court, but the opinion cited to the Court of Appeals’ prior Taylor opinion and concluded that the state’s evidence in this case failed under the objective prong of the true threat analysis. The court held that “the State did not meet its burden of showing that an objectively reasonable hearer would have construed Sophie’s statement about bombing the school as a true threat.” Slip Op. at 6. By contrast, the court held that the state did present sufficient evidence to support an adjudication for misdemeanor communicating threats under G.S. 14-277.1, where there was evidence that a reasonable person in the victim’s position would have taken the juvenile’s threat to hit him with a crowbar and bury him in a shallow grave seriously.

The Taylor opinion is still relatively new, but going forward it may have a similar impact on a number of other statutes that criminalize threatening speech. A few offenses that immediately come to mind include: threatening a witness under G.S. 14-226; threatening phone calls under G.S. 14-196(a)(2); threats to punish or deter withdrawal from a gang under G.S. 14-50.19 and 50.20; cyberstalking by threatening language under G.S. 14-196.3; or even extortion under G.S. 14-118.4. Of course there may be others, as well.

Objective and Subjective Intent

After Taylor, there is no question that the state must prove that the defendant made an objectively threatening statement that had the subjective intent to threaten the recipient or target, but… what exactly does that mean?

First, citing U.S. Supreme Court precedent, our state Supreme Court concluded that it “appears clear that the State need not prove that a defendant intended to actually carry out an act of violence in order to obtain a conviction of the defendant for communicating a threat.” Taylor at 752. Second, in deciding that the state had presented sufficient evidence to withstand a motion to dismiss in this case, the court observed that the defendant’s social media posts “should not be read in isolation and are more properly considered in context.” Id. at 756. In this case, the defendant’s social media posts included objectively threatening content such as the repeated use the word death and references to firearms and vigilante justice, and the defendant expressed his hope that the victim would become aware of the posts. Reversing the Court of Appeals on this point, the state Supreme Court concluded that taken together and viewed in context, this was enough evidence “to warrant consideration by a jury as to whether defendant has issued a true threat.” Id.

Fair enough — but how should attorneys and trial judges apply that in their next case involving an alleged true threat? If the state’s evidence is somewhat similar to Taylor, but not quite as strong, is it still enough to prove that the statements were objectively threatening or the defendant’s subjective intent that they be taken as a threat? After all, based on the exact same evidence outlined above, Justice Earls disagreed with the majority in Taylor and would have held that evidence “overwhelmingly and exclusively” supported a finding that the defendant was just expressing his outrage about a political issue and “blowing off steam,” not that he had “any intent to threaten” the victim or make her “fear impending bodily harm.” Id. at 767. Would lesser evidence of the defendant’s subjective intent still have persuaded a majority at the state Supreme Court? If so, how much less still would have been enough? And how does a trial judge make a reliable prediction about that when faced with a motion to dismiss?

In most cases that involve disputes about intent, the easy answer is to say “this is why we have juries.” The state presents its case, and the trial judge need only decide if there is some positive evidence, taken in the light most favorable to the state, to support a finding of subjective intent. If so, then we let the jury make the intent determination in accordance with N.C.P.I.-Crim. 120.10:

Intent is a mental attitude seldom provable by direct evidence. It must ordinarily be proved by circumstances from which it may be inferred. You arrive at the intent of a person by such just and reasonable deductions from the circumstances proven as a reasonably prudent person would ordinarily draw therefrom.

In general I would agree with that answer, but there is one additional wrinkle to contend with here. In true threat cases, the appellate court engages in “whole record review.”

Sufficient Evidence and Whole Record Review:

In the earlier Taylor opinion, the Court of Appeals held that “whenever a defendant’s conviction is based in part on a determination that the State met its burden of proving the existence of a ‘true threat’” the appellate court must engage in an “independent whole record review,” which means that the court makes an “independent examination of the whole record, …so as to assure [itself] that the judgment does not constitute a forbidden intrusion on the field of free expression…. Thus, whether a statement constitutes a true threat is a matter subject to independent review.” 270 N.C. App. at 539 (internal quotation omitted). Under that standard, the appellate court reviewed all the evidence and concluded that it was insufficient to establish a true threat, because the statements were neither objectively threatening nor made with a subjective intent to threaten.

The majority at the state Supreme Court agreed that “whole record review” was proper, but held that the Court of Appeals applied that type of review incorrectly. In short, according to the majority, the appellate court does indeed “make an independent examination of the whole record in order to make sure that the judgment does not constitute a forbidden intrusion on the field of free expression,” but at the same time the court does not “ignore a trial court’s factual determinations. In this regard, an appellate court is not entitled to ‘make its own findings of fact and credibility determinations, or overrule those of the trier of fact.’” 866 S.E.2d at 755. Hence, whole record review only “supplements rather than supplants” the traditional level of review for a trial court’s ruling. The majority further explained that although the defendant’s statements in this case may have been political in nature and thus protected speech, they were not “mere political hyperbole as a matter of law,” and the statements could “potentially be reasonably regarded by a jury as constituting a true threat,” so the evidence was sufficient to survive the motion to dismiss. Id.

Justice Earls strongly disagreed with this interpretation of whole record review in her dissent:

Our task is not, as the majority frames it, to decide if Taylor’s “statements would potentially be reasonably regarded by a jury as constituting a true threat.” Our task is to decide if, taking the evidence on disputed factual issues in the light most favorable to the State, the jury could permissibly conclude that Taylor’s Facebook posts contained a true threat consistent with applicable First Amendment principles. […] By treating Taylor’s appeal as no different than any criminal defendant’s appeal from a trial court’s motion to dismiss, the majority eschews an obligation we are not entitled to ignore.

The social media posts at issue in Taylor are a striking example of how challenging it can be to apply this doctrine in real-world cases. Reasonable minds will inevitably disagree about whether a particular statement was objectively threatening or reflected a subjective intent to make a threat. Furthermore, an appellate judge engaged in whole record review of such a case might sincerely conclude that no reasonable person could possibly view the statement as a true threat, despite the fact that several others (including the charging officer, prosecuting attorney, trial judge, and jury) apparently did. Under Taylor, the appellate judge would be obligated to make an independent determination of those elements based on the whole record, and yet do so without ignoring or overruling the trial court’s factual determinations in the case. I have to admit, I find this guidance somewhat hard to decipher and reconcile. Hopefully future cases in this area will clarify and refine the appropriate standard of review to be applied in anti-threat prosecutions.

So to wrap up, at the moment I think we find ourselves with: (i) multiple criminal statutes potentially impacted by Taylor; (ii) very little North Carolina precedent applying the “true threat” doctrine; (iii) ample room for disagreement about what evidence is sufficient to satisfy both the objective and subjective elements of a true threat; and (iv) conflicting views on what “whole record review” allows, prohibits, or requires on appeal.

Stay tuned, folks — this will be an interesting area of law to follow over the next few years.