The Volokh Conspiracy
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Today, the North Carolina Supreme Court handed down State v. Mylett, in which the UCLA First Amendment Clinic had filed an amicus brief on behalf of the Pennsylvania Center for the First Amendment. The court reversed the defendant's conviction on the grounds that there wasn't enough evidence that he conspired to intimidate a juror (congratulations on that to Rob Heroy, the defendant's lawyer), and therefore didn't need to reach our arguments that the juror-intimidation statute, as interpreted by the North Carolina Court of Appeals, was overbroad.
But I thought I'd pass along our amicus brief for those who are interested in such things—and of course I wanted to thank our superb pro bono local counsel, Noell Tin of Tin Fulton Walker & Owen, and my student Bruce Lee, who worked on the brief with me.
Summary of Argument
N.C. Gen. Stat. § 14-225.2 criminalizes "threatening" or "intimidating" a juror because of his or her "prior official act as a juror." This statute is content-based on its face, because it "draws distinctions based on the message a speaker conveys" Reed v. Town of Gilbert, 135 S. Ct. 2218, 2227 (2015)—here, based on whether it conveys a "threatening" or "intimidating" message. The statute is also content-based because it requires prosecutors and other law enforcement officials to "examine the content of the message that it conveyed to determine whether" a violation has occurred. McCullen v. Coakley, 134 S. Ct. 2518, 2531 (2014). The Court of Appeals thus erred in concluding that the statute merely criminalizes conduct, not speech, and in concluding that the statute is content-neutral.
Because the statute is content-based, it must be narrowly tailored to a compelling government interest. See Reed, 135 S. Ct. at 2231. The statute can satisfy this test if the statute is read as limited to "true threats," one of the narrow categories of speech that is excluded from First Amendment protection. See, e.g., Virginia v. Black, 538 U.S. 343, 359-60 (2003).
But the Court of Appeals read the statute as going beyond just true threats, even though the dissent pointed out that such a broad reading violates the First Amendment. Indeed, the decision below upheld a conviction even though the trial court expressly refused the defense's request to instruct the jury that "threaten" and "intimidate" was limited to true threats.
This makes it possible for convictions to rest solely on constitutionally protected speech—for instance, statements that can be seen as "intimidat[ing]" people through fear of public embarrassment or social ostracism. Under such a reading, it could be a crime for a newspaper to harshly criticize jurors' decisions, or for a "group of people who had gathered in a public space outside a courthouse to voice their dissatisfaction with a verdict in a high profile case," State v. Mylett, No. COA17-480, 2018 WL 6314137, at *17 (N.C. Ct. App. 2015) (McGee, dissenting). This cannot be constitutional.
This Court should therefore overturn the Court of Appeals' decision, and conclude that § 14-225.2 must be interpreted as limited to "true threats."
[I.] Section 14-225.2 is a content-based speech restriction
Section 14-225.2 criminalizes any speech that is "threatening" or "intimidating" to a juror and that is said in response to that juror's official act. The statute is content-based for two related reasons: First, it restricts speech based on the "message a speaker conveys," Reed, 135 S. Ct. at 2227—here, a message that is "threatening" or "intimidating." Second, it requires prosecutors and other "'enforcement authorities' to 'examine the content of the message that is being conveyed to determine whether' a violation has occurred," McCullen v. Coakley, 134 S. Ct. 2518, 2531 (2014) (citation omitted), again to see if the content is "threatening" or "intimidating."
This would be true even if § 14-225.2 were read as limited to criminalizing true threats (a reading the court below did not adopt). Laws that permissibly restrict true threats are nonetheless content-based—in Virginia v. Black, the Court listed bans on "true threats" as "restrictions upon the content of speech," albeit ones that are allowed under the First Amendment. 538 U.S. 343, 358-59 (2003) (internal quotation marks omitted). Likewise, in Watts v. United States, the Court noted that a statute making it illegal to threaten to kill or injure the President of the United States criminalized "a form of pure speech." 394 U.S. 705, 707 (1969) (per curiam). The same is true of this statute.
The Court of Appeals thus erred in concluding that the statute is content-neutral, and that it restricts conduct, not speech. See State v. Mylett, No. COA17-480, 2018 WL 6314137, at *3-5 (N.C. Ct. App. 2015). Though the statute does not mention speech expressly, and could in theory be violated by nonspeech conduct, here the statute covered Mylett's speech because of the supposedly threatening or intimidating message that the speech communicated. Even laws "directed at conduct" are content-based speech restrictions when "the conduct triggering coverage under the statute consists of communicating a message." Holder v. Humanitarian Law Project, 561 U.S. 1, 28 (2010).
Thus, in Holder, the Court held that a statute prohibiting "material support" to foreign terrorist organizations was a content-based speech restriction, even though "material support" "most often does not take the form of speech at all." Id. at 26-28. Likewise, § 14-225.2 is not rendered content-neutral just because the statute happens to also criminalize threatening or intimidating conduct as well as threatening or intimidating speech.
Similarly, in Cohen v. California, the Court struck down the conviction of a man who was convicted under a statute prohibiting maliciously and willfully disturbing the peace or quiet of any neighborhood or person by "offensive conduct." 403 U.S. 15, 16 (1971). Cohen was convicted for wearing a jacket bearing a vulgar and offensive anti-draft message; and because "[t]he only 'conduct' which the State sought to punish [was] the fact of communication," the Court treated the law as a content-based restriction on speech. Id. at 18; Holder, 561 U.S. at 27-28; United States v. Playboy Entm't Group, Inc., 529 U.S. 803, 813 (2000) (giving Cohen as an example of a case involving "a content-based speech restriction"); Police Dep't v. Mosley, 408 U.S. 92, 95 (1972) (same); see also Eugene Volokh, Speech as Conduct: Generally Applicable Laws, Illegal Courses of Conduct, "Situation-Altering Utterances," and the Uncharted Zones, 90 Cornell L. Rev. 1277, 1284 (2005). The same analysis applies to § 14-225.2.
[II.] Section 14-225.2 would not be narrowly tailored to a compelling government interest unless it is read as limited to "true threats"
Because the statute is a content-based speech restriction, it is unconstitutional unless it is narrowly tailored to a compelling government interest. Reed v. Town of Gilbert, 135 S. Ct. 2218, 2231 (2015); State v. Bishop, 368 N.C. 869, 877 (2016). The State does have a compelling interest in "ensuring that jurors remain free from threats and intimidation directly resulting from their duty to serve." State v. Mylett, No. COA17-480, 2018 WL 6314137, at *5 (N.C. Ct. App. 2015). And if the law were read as limited to constitutionally unprotected true threats, it would be narrowly tailored. "'True threats' encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence," Virginia v. Black, 538 U.S. 343, 359 (2003), and intimidation "in the constitutionally proscribable sense of the word is a type of a true threat." Id. at 360.
But laws criminalizing threatening speech "must be interpreted with the commands of the First Amendment clearly in mind" in order to distinguish true threats "from constitutionally protected speech." Watts, 394 U.S. at 707. In this case, though, the Court of Appeals rejected the dissent's call to read the statute as limited to true threats. State v. Mylett, No. COA17-480, 2018 WL 6314137, at *19 (N.C. Ct. App. 2015) (McGee, C.J., dissenting). The law as read by the court below thus covers a broad range of speech that might be loosely seen as "intimidating" rather than threatening, or might be seen as threatening just embarrassment or social ostracism rather than criminal conduct.
Other courts have recognized the importance of following Watts and limiting threat statutes to "true threats." Thus, in State v. Johnston, the Washington Supreme Court held that a statute banning "threaten[ing] to bomb or otherwise injure any public or private school building" could only apply to true threats. 156 Wash. 2d 355, 360 (2006). Under any looser construction, the court reasoned, the statute would be rendered "unconstitutionally overbroad under the First Amendment." Id. at 363. And because the jury was not instructed using the true threats standard, the court reversed the conviction. Id. at 366.
Similarly, in State v. Perkins, the Supreme Court of Wisconsin overturned a conviction under a statute criminalizing threats against judges because the jury instructions failed to distinguish between true threats and "hyperbole, jest, innocuous talk, expressions of political view, or other similarly protected speech." 243 Wis. 2d 141, 165 (2001). To be constitutional, the jury instructions needed to "contain a clear definition of a threat based on the true threat standard." Id. at 166. Likewise, Mylett's conviction should be reversed and the case retried with the jury being given such a "clear definition of a threat."
[III.] If read as the court of appeals read it, the statute would be facially overbroad and thus unconstitutional
The Court of Appeals' interpretation also renders the statute invalid on its face. Under the First Amendment, "a law may be invalidated as overbroad if 'a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep.'" United States v. Stevens, 559 U.S. 460, 473 (2010) (citation omitted). Here, if the statute were not read as limited to true threats, it would indeed have a substantial number of unconstitutional applications.
Speech could be said to be "intimidating" or "threatening," for instance, just because it makes people fear public embarrassment or social ostracism. Under the Court of Appeals' reading of the statute, then, a newspaper columnist could be prosecuted for naming jurors and condemning their recent verdict in a way that some jurors saw as "intimidating," even if the op-ed made no constitutionally unprotected true threats. Yet a conviction on this basis would be unconstitutional: "[s]peech does not lose its protected character . . . simply because it may embarrass others or coerce them into action." NAACP v. Claiborne Hardware Co., 458 U.S. 886, 910 (1982).
Likewise, the Court of Appeals' loose reading of "threatening" and "intimidating" could apply to angry denunciations of a jury verdict (criminal or civil) in a political candidate's speech, or on a citizen's Facebook page, if the speakers have reason to think that the denunciations might be forwarded to some jurors. And, as the Court of Appeals dissent noted, the statute could permit the prosecution of citizens who had lawfully gathered "outside a courthouse to voice their dissatisfaction with a verdict in a high profile case," State v. Mylett, No. COA17-480, 2018 WL 6314137, at *17 (N.C. Ct. App. 2015) (McGee, dissenting), even when they do not make any true threats—a prosecutor could argue that the mere presence of an angry and passionate crowd would intimidate a juror leaving the courthouse.
The way to avoid such unconstitutional facial overbreadth is to do what the dissenting judge below suggested, and what the Washington and Wisconsin Supreme Court decisions cited above did: read the statute as limited to "true threats," and as requiring that the jury be instructed accordingly.
Section 14-225.2 restricts speech and not just conduct, and restricts it based on its content. That is permissible if the statute is read as limited to "true threats," a constitutionally unprotected category of speech. But the jury was not instructed that it had to find a true threat, and the Court of Appeals rejected the dissenting judge's call to read the statute as limited to true threats. The Court of Appeals decision should therefore be reversed.