The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

N.C. Supreme Court Holds "True Threats" Exception Requires Purpose to Threaten,

and remands for retrial as to whether such a purpose would be shown.


From State v. Taylor, decided Friday by the North Carolina Supreme Court (in an opinion by Justice Michael Morgan):

On 24 August 2016, defendant David Warren Taylor posted a string of angry comments on his personal Facebook social media page. The messages conveyed defendant's forceful disagreement with a decision by the area's elected District Attorney, Ashley Welch, not to criminally prosecute the parents of a child after the youngster's death under unusual circumstances in Macon County. During the diatribe, defendant consumed an unspecified, but apparently significant, quantity of beer. Most of defendant's posts contained pointed, inflammatory, but essentially political critiques of District Attorney Welch and various aspects of the Macon County judicial system.

Some of the posts contained troubling language. In one of them, defendant promised that District Attorney Welch "will be the first to go" when a purportedly impending "rebellion against our government" occurs. In another comment, defendant declared that "[i]f [District Attorney Welch] won't do anything, then the death to her as well." Defendant 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."

Within a couple of hours of publishing his final Facebook message, defendant reconsidered the wisdom of broadcasting his unadulterated opinions on social media, in what has been called "the modern public square." However, before defendant could delete the rant from his Facebook page, one of his Facebook "friends"—a detective in the Macon County Sheriff's Office—became concerned that the messages harbored content more sinister than intemperate venting. The detective took screenshots of defendant's posted comments and sent them to District Attorney Welch and the Macon County Sheriff, who then contacted the North Carolina State Bureau of Investigation (SBI). The next day, SBI investigators interviewed defendant at his office. That afternoon, defendant was arrested and later indicted under N.C.G.S. § 14-16.7(a) for "knowingly and willfully" threatening to kill a court officer. Defendant was subsequently convicted of the charged offense. He received a suspended sentence of 24 months of supervised probation and a $1,000 fine….

At its core, this case presents a single question: Does the Free Speech Clause … protect defendant from being convicted solely for publishing the messages contained in his Facebook posts? We conclude that it does, and therefore determine that his messages are shielded by the First Amendment….

The court concluded that the "true threats" exception to the First Amendment applies only when the government can show "a speaker's subjective intent to threaten," as well as showing that the speech would objectively be perceived as a true threat. Mere negligence about the possibility that people would feel threatened by the statement—or presumably even recklessness or knowledge of that possibility—appears to be insufficient. (There is a deep split on the subject among federal and state appellate courts, and the Supreme Court's 2015 U.S. v. Elonis decision declined to resolve it. UPDATE: Justice Thomas urged the Court to resolve the split in his 2020 Kansas v. Boettger dissent from denial of certiorari, and Justice Sotomayor did likewise in her 2017 Perez v. Florida dissent, but there weren't four votes to get the Court to hear the issue.)

But the court concluded that there was enough here from which a jury could find a purpose to threaten, but reversed for retrial before a jury that was properly instructed that it couldn't convict absent a finding of such purpose.

Some of the most strident language employed by defendant in his criticism of the elected district attorney, which defendant readily admitted that defendant posted on his social media page, included these statements:

  • I hope those that are friends with her [the elected district attorney] share my post because she will be the first to go, period and point made.
  • When the deputy ask me is it worth it. I would say with a Shotgun Pointed at him and a ar15 in the other arm was it worth to him? Who cares what happens to the person I meet at the door. I'm sure he won't. I would open every gun I have…. Death to our so called judicial system ….
  • This is how politics works. That's why my harsh words to her and any other that will Listen and share it To her [social media] page.
  • If that [vigilante justice] what it takes [ ]. I will give them both [the elected district attorney and "any other that will Listen"] the [mountain] justice they deserve…. If our head prosecutor won't do anything then the death to her as well. Yea I said it. Now raid my house for communicating threats and see what they meet….
  • It can start at my house. Hell this has to start somewhere. If the courts won't do it as have been proven. Then yes it Is up to the people to administer justice! I'm always game to do so. They make new ammo everyday!
  • It is time for old Time mtn justice! Yes [ ] I said it. Now let Them knock on my door.

While all of defendant's words may be political hyperbole, and hence, protected speech, defendant's social media utterances do not represent mere political hyperbole as a matter of law. Defendant's statements should not be read in isolation and are more properly considered in context; therefore, when viewed in the light most favorable to the State, these statements would potentially be reasonably regarded by a jury as constituting a true threat to inflict serious bodily injury upon or to kill the elected district attorney.

Defendant's multiple uses of the word "death" in direct reference to the elected district attorney and the judicial system in which she was serving, defendant's favorable reception to the exercise of "vigilante justice" and "old time mountain justice" for those individuals who are a part of the court system, defendant's numerous representations of his willingness to utilize firearms to accomplish his manifesto, defendant's several expressions of bravado concerning his commitment to employ firearms against any representative of the criminal justice system, and defendant's repeated expression of the hope that the elected district attorney would become aware of defendant's social media posts all combine to warrant consideration by a jury as to whether defendant has issued a true threat to inflict serious bodily injury upon or to kill the elected district attorney….

Justice Anita Earls dissented as to the retrial, concluding that "[a]n objectively reasonable observer viewing Taylor's Facebook posts in their full context could not understand his messages to contain a serious intention to inflict bodily harm on District Attorney Welch" and that "even if the State had satisfied the objective element, there is insufficient evidence to support the conclusion that Taylor subjectively intended to threaten District Attorney Welch with violence."

She noted the importance of punishing true threats:

The relevant precedents and First Amendment principles require the State to prove Taylor's subjective intent to threaten. Nevertheless, the scope of the true threats doctrine must not be too narrow because true threats can practically undermine the values of freedom of speech and civic engagement that the First Amendment serves.

One of the principal justifications for permitting the State to punish true threats is its interest in "protecting individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur." … If the cost of participating in public life is to be bombarded with serious threats of violence towards one's self and family, many people will choose to forego contributing their voices to the "free exchange [that] facilitates an informed public opinion, which, when transmitted to lawmakers, helps produce laws that reflect the People's will." This degrades the "marketplace of ideas" upon which "[o]ur representative democracy" depends. As a result, the public will be left without the benefit of "information [which] is a precondition for public debate, which, in turn, is a precondition for democratic self-governance."

But true threats do more than dissuade others from contributing to the "marketplace of ideas." True threats interfere with the exercise of all the "cognate rights" and "indispensable democratic freedoms secured by the First Amendment." When true threats proliferate, the attendant fear of imminent violence deters individuals from participating in the institutions, processes, and everyday interactions through which Americans endeavor to shape the course of collective life. Faced with the threat of retributory violence, individuals may choose to forego exercising their rights to associate with like-minded citizens, to publicly assemble in protest or support of existing policies, to petition their government and public officials, or to publish their views for widespread distribution. Because it is the exercise of these rights which "protect and nurture the sort of active citizenship and collective action that have been the lifeblood of our system of government since its founding," Ashutosh Bhagwat, The Democratic First Amendment (Nw. U. L. Rev. 2016), the proliferation of true threats is a danger to the vitality of our democracy.

True threats represent a particular First Amendment problem because of the ways the specter of violence warps the processes from which our government derives its legitimacy. Our nation's and our state's own history reveal how threats of violence and actual violence have kept people from exercising democratic rights they formally enjoyed. See, e.g., David Zucchino, Wilmington's Lie: The Murderous Coup of 1898 and the Rise of White Supremacy, Atlantic Monthly Press (2020). If our First Amendment doctrines foster the proliferation of threats which make the reasonable fear of imminent violence a pervasive feature of political life, the First Amendment loses its point. R.A.V. also highlighted the concern that allowing threats of violence to go unpunished would contribute to real-world violence. A First Amendment which fosters political violence is self-defeating, because a society which settles political disputes by resorting to violence—or a society which is forced to settle political disputes in the looming shadow of violence—cannot function as a self-governing democracy.

These realities highlight the risk that an overly narrow definition of what constitutes a true threat will lend a cloak of legitimacy to methods of achieving political change that are antithetical to everything the First Amendment stands for. At the same time, we must consider the First Amendment's paramount interest in fostering the free exchange of ideas, and the immense value to our system of governance that this free exchange provides. This interest may seem remote when the speech at issue appears to most who encounter it to be crude, caustic, or fantastical, but our system functions best when citizens are "active, collective, disrespectful, and even sometimes incendiary."

But she concluded that, in this case, Taylor's speech shouldn't be seen as falling within the exception:

Although the majority claims it is assessing Taylor's statements in their full context, the majority instead isolates snippets of "strident language" which it concludes "do not represent mere political hyperbole as a matter of law." The problem with the majority's approach is that it fails to account for how the context surrounding Taylor's statements would have informed how a reasonable observer could have interpreted the language he chose to deploy. A reasonable observer who viewed Taylor's Facebook posts in their full context could not understand his statements to contain an objective threat of violence.

Even the statements Taylor made which most plausibly read to suggest the possibility of actual violence—that District Attorney Welch "will be the first to go" and that "[i]f [she] won't do anything, then the death to her as well"—are not direct threats of harm. Both statements are conditional. Whatever Taylor is implying he will do is predicated on the occurrence of some antecedent event (a "rebellion against our government," District Attorney Welch refusing to "do anything" to prosecute alleged criminals in Macon County), events which a reasonable person would not believe to be imminent or inevitable, at least at the time Taylor posted his messages. Given the context, no reasonably listener could infer that his hypothetical and conditional statements were literal pronouncements of his intent to physically harm District Attorney Welch.

Although Taylor did use language suggesting he might try to remedy perceived injustices through something other than political advocacy, none of these statements suggested he was planning to personally target District Attorney Welch with violent acts. Taylor's statements referencing violence included his promise to "open every gun I have" should law enforcement raid his home; his declaration that he is "always game" to "administer justice" because "[t]hey make new ammo everyday!"; his response "If that what it takes" when his Facebook friend called for "vigilante justice"; and his announcement that it was "time for old [t]ime m[ountain] justice," which Taylor would deliver "[r]egardless of what the law or courts say" because he was "tired of this political bullshit." None of these statements contain words threatening District Attorney Welch specifically with actual violence.

Further, a message advocating for the use of violence to achieve political change is not the same as a message conveying a serious expression of an intent to harm a specific person. Protected political speech is not "remove[d] … from the protection of the First Amendment" merely because it contains "advocacy of the use of force or violence." There is nothing in the posts connecting Taylor's apparent willingness to resort to violence to his comments about what would happen to District Attorney Welch in the future if certain events were to occur. Taylor's messages reveal nothing more than the depth of his feeling regarding what he saw as a grave injustice in Macon County.

Importantly, Taylor communicated his threats in the midst of a heated discussion centered on political matters of significant concern to Taylor and his Facebook friends. The fact that a statement was communicated in the middle of a conversation regarding political issues is relevant when assessing what inferences an observer could reasonably draw from language that is only ambiguously violent. That Taylor "spoke his threatening words in the context of his political views" while a perceived political crisis "was just unfolding" is relevant information a reasonable listener would necessarily consider in ascertaining the meaning of Taylor's remarks. As is the fact that Taylor removed the messages from his Facebook page shortly after posting them. The majority errs in failing to account for this context.

Notably absent from Taylor's diatribe is any language supporting the reasonable belief that he intended "to do anything specific to anyone at any particular time." As the Supreme Court of Colorado has explained, the true threats inquiry "should include whether the threat contains accurate details tending to heighten its credibility." Here, Taylor did not specify a "date, time, and place" or method for where and how he intended to carry out his purported threat. The majority points to nothing which would lead a reasonable listener to conclude that Taylor had considered acting on these supposed threats.

Other courts have accorded significant weight to the presence or absence of such details in examining whether a defendant's statements could reasonably be construed as an objective threat. For example, the Supreme Court of Washington concluded that there "was ample evidence from which a reasonable jury could determine that [a defendant's] threats were 'true threats,' " based in part on the fact that defendant "specifically said that 'he wanted to kill them with his bare hands, by strangulation,' " "repeated his desire to kill his neighbors" on multiple occasions, and had previously threatened his neighbors with a chain saw.

By contrast, the Supreme Judicial Court of Massachusetts held that the evidence was insufficient to convict a defendant who posted a photograph of himself holding a gun with the caption "[m]ake no mistake of my will to succeed in bringing you two idiots to justice," because "nothing else about that image suggests a clear intent to commit violence." Here, although Taylor's posts may have "come across as vaguely ominous or disturbing," they do not give rise to the reasonable inference that Taylor intended to physically harm District Attorney Welch. Additionally, Taylor and District Attorney Welch previously maintained a cordial relationship, and there was no evidence indicating Taylor had a propensity for engaging in violent conduct. Again, all this context which the majority ignores is relevant in assessing the meaning a reasonable person could draw from Taylor's posts.

The reaction of the individuals who interacted with Taylor's posts while his diatribe was unfolding is particularly telling. For example in Watts, the Supreme Court thought it notable that "[the defendant] and the crowd laughed after the [purported threat] was made." This emphasis on the reactions of those actively participating in the broader exchange within which the purported threats were communicated reflects the commonsense intuition that the actual and intended recipients of a message are in the best position to discern its meaning. As the Court of Appeals explained,

Defendant was engaging in a heated discussion, or "debate," about a political concern with his Facebook friends, which was emotionally charged due to the content of the discussion, a dead child, as well as shared feelings, very likely incorrect, that D.A. Welch improperly declined to prosecute the parents. Facebook has the status of a "public square," but can feel like a "safer" place to discuss controversial topics or make inappropriate, hyperbolic, or boastful statements. The audience is generally known to the person posting, and there is often a sense of community and like-mindedness. The record evidence is that every response to Defendant's posts on Facebook was supportive of Defendant's comments. None of the responses on Facebook indicated concern that Defendant might be planning to kill D.A. Welch. By posting on Facebook, Defendant was expressing his feelings publicly, but selectively, in the "most important place[ ] … for the exchange of views."

None of the active participants in this conversation said or did anything reflecting even a modicum of concern that Taylor was imminently planning to physically harm District Attorney Welch. The only person who did find Taylor's messages concerning—the detective in the Macon County Sheriff's Office—was an "unintended recipient[ ]" who "stumble[d] upon" the posts, not someone whose reaction is illustrative of what a reasonable person would conclude with full knowledge of the surrounding context.

Taking this evidence in the light most favorable to the State, a reasonable person who encountered Taylor's statements—and who was familiar with the context in which they were made—could, at most, conclude that Taylor communicated a statement containing an ambiguous, allusive threat of violence to be carried out in some unknown way, by some unknown person, at some unknown time, after the occurrence of two vaguely defined events which may or may not have ever occurred. That is not the kind of statement the First Amendment allows the State to criminally punish. In my view, even when all disputed factual issues are taken in the light most favorable to the State, a jury could not have found that Taylor communicated a message that a reasonable person would interpret as a threat to harm District Attorney Welch consistent with First Amendment principles.