The Volokh Conspiracy
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"[No] Posting Anything Further About [Plaintiff]"—You're "Planting Bad Thoughts in People's Heads"
That was the justification for a trial court order, which the North Carolina Court of Appeals has just reversed.
From Weller v. Jackson (COA21-80), decided yesterday by the North Carolina Court of Appeals, in an opinion by Judge John Arrowood, joined by Judges Hunter Murphy and Jefferson Griffin:
Gerald Jackson ("defendant") appeals from a civil no-contact order restricting him from "posting anything further about" Louise Ann Weller ("plaintiff")….
On 19 May 2020, defendant wrote and published an article on his online news blog "The North Carolina Beat." The article discussed plaintiff and alleged that she had created several Facebook groups concerning missing persons in North Carolina and other states. The article further alleged that plaintiff used the groups to contact the families of the missing persons to offer help and support but would instead use the groups to terrorize the families and "spread false information" about them, including by insinuating the family members were responsible for the disappearances….
[P]laintiff filed a complaint in Onslow County District Court seeking a civil no-contact order against defendant under N.C. Gen. Stat. § 50C…. Plaintiff explained that she had filed the action related to social media posts made by defendant on his "North Carolina Beat" Facebook page. In her opening statement, plaintiff expressed fear for herself and her family due to "harassment, slander, and verbal assaults that occurred to us from [defendant], as well as racial—racist sexual harassment slurs and verbal sexual harassment assaults."
Plaintiff added that defendant was "threatening and insinuating that himself or others commenting on his [live-streamed videos] should inflict violence and deadly bodily harm to us." Defendant responded by explaining that plaintiff initially contacted him "as it relates to exposing someone, and that backfired on her[.]" Defendant further stated that he had not directly or indirectly contacted plaintiff or made any type of harassing comments to her, and that he had no control over other individuals that may have contacted plaintiff….
The trial court acknowledged that defendant had made no "direct threat" to plaintiff but expressed concern that the North Carolina Beat posts may "in essence, be planting bad thoughts in people's heads." The trial court described the North Carolina Beat videos as walking "a fine line between freedom of speech and reporting the news" and "inciting people because it has entertainment value." The trial court added that although defendant was not responsible for what his audience posted or how they responded to his videos, he was "partially responsible" for their harmful behavior "if [he] incit[ed] that type of a response out of [his] listeners by presenting information that goes beyond journalism." …
The trial court issued a civil no-contact order against defendant, barring him from "posting anything further about" plaintiff for six months. The trial court found that defendant had "harassed Plaintiff through his social media blog & website and has caused and incited individuals through his livestream broadcasts to make threatening statements towards Plaintiff." The trial court also found that defendant had continued to harass plaintiff through social media since the prior hearing, and that "Plaintiff has suffered substantial emotional distress and fears for her safety." …
Section 50C authorizes a civil no-contact order "[u]pon a finding that the victim has suffered an act of unlawful conduct committed by the respondent." The definition of "unlawful conduct" includes "stalking," which is defined … as "[o]n more than one occasion, following or otherwise harassing, … another person without legal purpose with the intent to" either "[p]lace the person in reasonable fear either for the person's safety or the safety of the person's immediate family or close personal associates[,]" or "[c]ause that person to suffer substantial emotional distress by placing that person in fear of death, bodily injury, or continued harassment and that in fact causes that person substantial emotional distress." "Harassment" is defined as "[k]nowing conduct including written or printed communication or transmission, … directed at a specific person that torments, terrorizes, or terrifies that person and that serves no legitimate purpose." Additionally, this Court has noted a distinction within the context of [this statute] between social media posts written "about" an individual but not sent "directly to" the individual. See State v. Shackelford (N.C. Ct. App. 2019) (emphasis in original) (holding the application of harassment statute to social media posts constituted a violation of defendant's First Amendment rights)….
Here, the record reflects that defendant posted a news blog article and a video that discussed plaintiff, but there is no evidence that defendant directed any written or printed communication at plaintiff. The social media posts and articles were "about" plaintiff, but were not "directed at" her, similarly to the social media posts made in Shackleford. There was no evidence presented that defendant directed any other written or printed communication "at" plaintiff prior to the no-contact order being entered. Because there was no evidence to support a finding that defendant stalked or harassed plaintiff within the definitions of N.C. Gen. Stat. § 50C, the trial court's findings of fact do not support the trial court's conclusion that defendant engaged in unlawful conduct. Accordingly, we reverse the no-contact order against defendant….
Defendant additionally argues the no-contact order violates his protected speech under the First Amendment and constitutes a prior restraint. Because we reverse the no-contact order due to insufficient evidence, it is unnecessary to address defendant's additional arguments….
Congratulations to Profs. Sarah Ludington & Nicole Ligon of the Duke Law School First Amendment Clinic, who represented the defendant.
