The First Amendment and Broad Juror Intimidation Statutes

|The Volokh Conspiracy |

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."

Argument

[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.

Conclusion

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.

NEXT: The Pandemic Has Produced a Radical Experiment in Federalism 

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  1. I think it could be argued that there is an independent compelling interest, separate from one regarding a general citizen, in ensuring that jurors don’t get harassed and intimidated to much by the defendant’s (or prosecutor’s) friends for their decisions. Otherwise, jurors could be subjected to intense email and harassment that falls short of the true threats definition. It is unreasonable to require superhuman stamina of ordinary people. When legal doctrine requires it, perhaps there is something wrong with the doctrine.

    A state has a compelling interest in ensuring that jurors’ decisions are not unduly influenced by outside parties, but are focused strictly on the evidence and law presented in court. This supports limits on influencing speech and behavior that may be greater than those the First Amendment would ordinarily allow.

    1. Agreed, the state’s interest in protecting jurors from this kind of intimidation (email and social media shaming) is greater than for the average citizen, and justifies a broader definition of “threat.”

      1. “This supports limits on influencing speech and behavior that may be greater than those the First Amendment would ordinarily allow.”

        That’s just not how it works. Everyone always thinks they have a justification for restricting speech. That is why there has to be a coherent standard, which your framework does not allow.

        1. The thing is, though, that there really may be such a justification here.

          Take Watts, which Prof. Volokh cited. There, a protester of the Vietnam War saying something like “if they gave me an M-16, the first one in my sights would be LBJ” was not a true threat. I agree with that. It wasn’t.

          But part of the reason it wasn’t is the political context of the speech. We expect our public officials to weather whithering attacks over their official acts and policies. A lot of political speech gets expressed in sort of mock-threatening rhetoric. It would seriously chill protected speech to allow the government to muck around in situations where nobody seriously thinks the President is going to be shot.

          But do we expect that of jurors, who are compelled to serve, who are compensated very little, and who have very little experience in the rough and tumble of public discourse.

          To be very clear, I would think “if they gave me an M-16, the first one in my sights would be those jurors who voted to convict my brother of witness intimidation” would not be protected speech. Or at least it should not be.

          Now you can get there by saying a reasonable person would be more likely to perceive such a statement about a juror as a true threat. But it might just be better to say that jurors, because of their special and important role in protecting the rights of citizens, are entitled to a greater level of protection than politicians are.

          1. Doesn’t limiting the statute to true threats protect court protesters and mean bloggers with strong opinions from prosecution. Either of those groups could certainly leave a fragile juror feeling intimidated. Limiting the statute’s reach to true threats protects those protest rights.

    2. I don’t necessarily agree with all that I’m about to say, but I thought I’d throw it out there.

      Once a jury gets to the stage of determining a verdict, they actually become powerful political actors. They can hold the government to account (or not). They can determine the liberty of another human. That decision will also have a profound effect not just on the defendant, but their family, friends, and community. They can even determine whether a defendant will be subject to capital punishment or not. Their decisions can effectively create types of precedent, as courts are loathe to disturb jury verdicts. They can create a social/cultural precedent too, like when they seem to routinely acquit police officers of crimes. When they sit in a high profile case, their decisions can have large political and social implications. They can even cause riots.

      Given all this, shouldn’t they be as influence-able and susceptible to public scorn as any other politician or government official?

      Of course, unlike other powerful political actors, their service is coerced. Jurors didn’t ask for any of it. Although people could probably debate how likely it is you would actually be on a jury if you really really did not want to serve.

      Maybe that’s the difference. If we had “professional juries” would our approach to juror security be different? Would we expect them to do their job in face of harassment like any other official because they signed up for it and could theoretically put that aside. just like judges and justices, theoretically put aside outside commentary on their decisions?

      1. Given all this, shouldn’t they be as influence-able and susceptible to public scorn as any other politician or government official?

        I think its the opposite. Indeed, the basic nature of our legal system kind of depends on judges and jurors being supposedly less susceptible to influence than politicians are.

        This is one reason I come down so hard on people who like to push the idea of jury nullification. Jurors are not supposed to be paying attention to the protesters in front of the courthouse; the Mayor IS supposed to be paying attention to the protesters at City Hall.

        1. It seems to depend a lot on trust then. Perhaps public scrutiny isn’t necessary because the system will enforce how important it is to fulfill the duty of a juror, and they will act accordingly.

          1. I think there are a lot of arguments against the jury system. It comes down to Churchill’s statement about democracy- it’s the worst system, except for all the others.

            But I certainly don’t think a hypothetical system where jurors are lawfully subject to a ton MORE outside influence will lead to better results. Indeed, there’s a lot of historical evidence that such a belief would be crazy.

      2. Just looking at the practical angle, this seems like a pretty bad failure of courthouse security. Let the jurors out a side door, or have guards handy in the lobby to keep defendants and jurors apart, etc.

        1. Ooops, that was supposed to be a standalone comment, not a reply …

    3. The compelling interest you describe makes sense before the jury reaches their verdict. We do not want email campaigns or harassment to affect their decision.

      However once the verdict is in, that compelling interest goes away. Their decision can no longer be influenced. All you are left with is the much more diffuse “interest” that other potential jurors would see the behavior and … what? Try to avoid jury duty? (More than they already do, that is?) Try to guess which side has more crazies to avoid hypothetical future harassment? Something else?

      I think the current balance is okay. True threats get prosecuted. Lesser “harassment”… Well, if you’re the kind of person who’s going to collapse after a couple of nasty emails, maybe we shouldn’t be trusting you with the power to put someone to death. I believe our citizens, and therefore our juries, are stronger than that.

      1. I don’t think that distinction is as hard as you think it is. In the OJ Simpson case, it has been the subject of informed speculation that the jurors faced threats when they came back home into their communities if they had voted to convict. Certainly the defense team openly fomented that atmosphere.

        Or think about jurors in mafia trials, or in gangster trials in the 1920’s or 1930’s.

        A world where such threats are legal so long as they come after the verdict might very well be a world where jurors are afraid of them before the verdict.

        1. Your argument makes no sense. OJ Simpson jurors, or mafia jurors, weren’t worried that they would face threats if they voted to convict. They feared that they’d be harmed if they voted to convict. Laws against verbal criticism would not have alleviated those fears.

          And there are, of course, already laws against harming jurors.

          1. You are excluding the middle, which is laws against intimidating jurors.

            If it is constitutionally protected to intimidate jurors after a verdict, it will spill over.

  2. “my student Bruce Lee”

    Soon the student will become the master.

    1. This comment deserves more appreciation. Allow me to congratulate you.

  3. I don’t follow the argument that the statute must be both narrowly tailored to a compelling government interest and limited to true threats. If the statute were limited to unprotected speech then it would not implicate constitutionally protected interests and so only rational basis review should be required. In other words, it should be limited to unprotected speech, or narrowly tailored, but need not be both. Why am I wrong?

    1. Yes. I was wondering about that too!

    2. You aren’t. There’s actually a lot wrong in Prof. Volokh’s argument, at least based on existing law.

      We had this discussion in the other thread about unfair labor practices. Many, many statutes prohibit various forms of intimidation and threats. It’s not at all clear that the strict scrutiny paradigm applies to all of them. Watts and Virginia v. Black were cases involving political expression expressed as a threat; I don’t understand them as holding that any statute in any context that applies to NON-POLITICAL expression that contains an expression of a threat must survive strict scrutiny. If that were so, for instance, you would have a constitutional right to make joking threats at a TSA checkpoint.

      1. As I explained to you in the other thread, no. There is a compelling government interest in favor of the TSA rule; it survives strict scrutiny.

        1. That is only half of strict scrutiny.

          Is prohibiting jokes the least restrictive means of preventing airplane bombings? No, it obviously isn’t.

          But since there is no attempt to suppress ideas, the checkpoint joke law is a time place or manner restriction and survives intermediate scrutiny.

          1. Is prohibiting jokes the least restrictive means of preventing airplane bombings? No, it obviously isn’t.

            That’s not the only government interest. Preventing panic is also. (This is one of the extraordinarily rare times when the “fire in a crowded theater” analogy actually is valid.)

  4. I’m deducting points from the majority for putting section headings at the very bottom of pages.

  5. I’m wondering if the Watts decision would be the same post-911.

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