TOPICS: FREE SPEECH, LGBT RIGHTS, CONSTITUTIONAL QUESTIONS, NC CYBERSTALKING LAW.

HILLSBOROUGH, NC: This Motion was filed on March 9, 2018 with the Clerk of Court and served to all parties. No motion to deny this
defense motion was filed by the State, represented by the District Attorney for District XVb, DA Jim Woodall, assisted by ADAs Blake
Courlang and Billy Massengale. About 4 hours of oral arguments were held on this Motion on March 13, 2018 in Orange County Superior
Court: the Honorable Judge Rebbecca Holt presiding. No ruling has yet been made upon this Motion, and the case has been continued to
August 6, 2018. After 13 months, the case is yet to move beyond pre-tial motions to dismiss.

NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE

COUNTY OF ORANGE SUPERIOR COURT DIVISION

FILE NO. 17 CRS 050340

STATE OF NORTH CAROLINA )

) MOTION TO DISMISS – STATUTE
VS. ) UNCONSTITUTIONALLY VAGUE,
)
OVERBROAD AND VIOLATIVE OF THE
NAPIER S. FULLER )
) FIRST AMENDMENT
Defendant. )
______________________________________________________________________________

NOW COMES the Defendant Napier S. Fuller (hereinafter “Mr. Fuller”), through
counsel, and respectfully moves this honorable Court to dismiss this case on the grounds that the
criminal statute that Mr. Fuller stands accused of violating, N.C.G.S.A. §14-196.3(b)(2)
(hereinafter the “Statute”), is unconstitutional both on its face and as applied to Mr. Fuller for the
following reasons: (I) the Statute is unconstitutionally vague such that men of common
intelligence must necessarily guess as to its meaning and differ as to its application because the
Statute: (1) “fails to give ordinary people fair notice of the activity that it punishes,” and (2) is
“so standardless that it invites arbitrary enforcement,” Kolender v. Lawson, 461 U.S. 352, 357
(1983); and (II) the Statute is unconstitutionally overbroad because it makes unlawful a
substantial amount of constitutionally protected conduct, in violation of the First and Fourteenth
Amendments to the United States Constitution as well as Article I, §§14 and 19 of the North
Carolina Constitution; and (III) the Statute is in violation of the First and Fourteenth
Amendments to the United States Constitution because the Statute is an impermissible content-
based restriction on protected speech that is not narrowly tailored to achieve a compelling
government interest; and (IV) pursuant to N.C.G.S.A. §14-196.3(e), any and all communications
at issue in this case constitute “peaceable, nonviolent, or nonthreatening activity intended to
express political views or to provide lawful information to others,” and/or are considered
“constitutionally protected activity” such that N.C.G.S.A. §14-196.3 either (1) does not apply or
(2) “shall not be construed to impair any such constitutional activity,” and in support thereof
respectfully shows unto the Court as follows:

1. That he has been charged with the offense of “Harassing Communications,” pursuant to
N.C.G.S.A. §14-196.3, specifically N.C.G.S.A. §14-196.3(b)(2). This law became
effective on July 14, 2000.

2. That N.C.G.S.A. §14-196.3(b)(2) reads as follows:

“(b) It is unlawful for a person to:

 …
(2) Electronically mail or electronically communicate to another, repeatedly, whether or
not conversation ensues, for the purpose of abusing, annoying, threatening, terrifying,
harassing, or embarrassing any person.”

3. Mr. Fuller’s warrant for arrest tracks the language of N.C.G.S.A. §14-196.3(b)(2) and
reads in its entirety as follows:

“I, the undersigned, find that there is probable cause to believe that on or about the date of
offense shown and in the county named above the defendant named above unlawfully and
willfully did REPEATEDLY EMAIL FACULTY AND STUDENTS OF THE UNIVERSITY
OF NORTH CAROLINA AT CHAPEL HILL SCHOOL OF SOCIAL WORK FOR THE
PURPOSE OF ANNOYING AND/OR EMBARRASSING THEM.

4. Attached to this Motion and incorporated by reference herein is a memorandum of law in

support of Mr. Fuller’s motion to dismiss entitled “MEMORANDUM OF LAW IN
SUPPORT OF DEFENDANT’S MOTION TO DISMISS.”

WHEREFORE, Mr. Fuller respectfully moves the Court to dismiss this case as the criminal
statute under which he is charged is unconstitutionally vague, overbroad and violative of his First
Amendment right to freedom of speech and expression.

Respectfully submitted, this the _______ day of March, 2018.

________________________
Brett O. Berne
Attorney for the Defendant
129 East King Street
Hillsborough, NC 27278
(919) 643-4400
 CERTIFICATE OF SERVICE

Undersigned counsel hereby certifies that a copy of the foregoing motion and attachment
was served on Assistant District Attorney Blake Courlang/William Massengale by delivery of a
copy of same to the Office of the District Attorney for District 15B in Hillsborough, North
Carolina.

This the _______ day of March, 2018.

________________________
Brett O. Berne
Attorney for the Defendant
129 East King Street
Hillsborough, NC 27278
(919) 643-4400
NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE

COUNTY OF ORANGE SUPERIOR COURT DIVISION

FILE NO. 17 CRS 050340

STATE OF NORTH CAROLINA )

)
VS. ) MEMORANDUM OF LAW IN SUPPORT
) OF DEFENDANT’S MOTION TO
NAPIER S. FULLER ) DISMISS
)
Defendant. )
______________________________________________________________________________

Introduction

This Memorandum of Law is submitted to the Court on behalf of the Defendant, Napier

S. Fuller (hereinafter “Mr. Fuller”) in support of Mr. Fuller’s motion to dismiss the charge of

“Harassing Communications” under N.C.G.S.A. 14-196.3(b)(2), such charge being filed against

Mr. Fuller on or about February 2, 2017. The charge alleged against Mr. Fuller should be

dismissed for the following reasons:

I. As drafted, N.C.G.S.A. §14-196.3(b)(2) is unconstitutionally vague such that men of

common intelligence must necessarily guess as to its meaning and differ as to its
application because the statute (1) fails to give ordinary people fair notice of the
activity that it punishes, and (2) is so standardless that it invites arbitrary
enforcement, in violation of the First and Fourteenth Amendments to the United
States Constitution as well as Article I, §§14 and 19 of the North Carolina
Constitution and, as a result, the statute is both facially unconstitutional and
unconstitutional as applied to Mr. Fuller.

II. As drafted, N.C.G.S.A. §14-196.3(b)(2) is overbroad because it makes unlawful a

substantial amount of constitutionally protected conduct, in violation of the First
and Fourteenth Amendments to the United States Constitution as well as Article I,
§§14 and 19 of the North Carolina Constitution and, as a result, the statute is both
facially unconstitutional and unconstitutional as applied to Mr. Fuller.

1
 III. As drafted, N.C.G.S.A. §14-196.3(b)(2) violates the First Amendment to the United
States Constitution1 because the statute is an impermissible content-based
restriction on protected speech that is not narrowly tailored to achieve a compelling
government interest and, as a result, the statute is both facially unconstitutional and
unconstitutional as applied to Mr. Fuller.

IV. Pursuant to N.C.G.S.A. §14-196.3(e), any and all communications, electronic or

otherwise, at issue in this case are considered “peaceable, nonviolent, or
nonthreatening activity intended to express political views or to provide lawful
information to others” and as a result N.C.G.S.A. §14-196.3 is not applicable, and
furthermore, any and all communications at issue in this case are considered
“constitutionally protected activity, including speech, protest, or assembly,” and
therefore N.C.G.S.A. §14-196.3 “shall not be construed to impair” such
communication.

I. As drafted, N.C.G.S.A. §14-196.3(b)(2) is unconstitutionally vague such that men of

common intelligence must necessarily guess as to its meaning and differ as to its
application because the statute (1) fails to give ordinary people fair notice of the
activity that it punishes, and (2) is so standardless that it invites arbitrary
enforcement, in violation of the First and Fourteenth Amendments to the United
States Constitution as well as Article I, §§14 and 19 of the North Carolina
Constitution and, as a result, the statute is both facially unconstitutional and
unconstitutional as applied to Mr. Fuller.

Constitutional Provisions

The First2 and Fourteenth Amendments to the United States Constitution provide,

respectively, and in relevant part:

“Congress shall make no law…abridging the freedom of speech…”

And,

“…No state shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor shall any state deprive any

1 Made applicable to the states by the 14th Amendment to the United States Constitution.

2 Made applicable to the states by the 14th Amendment to the United States Constitution.

2
 person of life, liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.”

Similarly, Article I, §§14 and 19 of the North Carolina Constitution provide respectively,

and in relevant part:

“Freedom of speech and of the press are two of the great bulwarks of liberty and
therefore shall never be restrained...”
And,

“No person shall be taken, imprisoned, or disseized of his freehold, liberties, or

privileges, or outlawed, or exiled, or in any manner deprived of his life, liberty, or
property, but by the law of the land. No person shall be denied the equal
protection of the laws…”

The Void for Vagueness Doctrine

“In determining whether a statute so poorly defines the conduct it intends to proscribe

that it becomes unconstitutionally vague, we turn to the following constitutional guidelines: That

the terms of a penal statute creating a new offense must be sufficiently explicit to inform those

who are subject to it what conduct on their part will render them liable to its penalties, is a well-

recognized requirement, consonant alike with ordinary notions of fair play and the settled rules

of law; and a statute which either forbids or requires the doing of an act in terms so vague that

men of common intelligence must necessarily guess at its meaning and differ as to its application

violates the first principal of due process of law.” State v. Rose, 312 N.C. 441, 443 (1984) (citing

Connally v. General Construction Company, 269 U.S. 385, 391 (1926)). (internal quotation

marks omitted). “The terms of a criminal statute must be sufficiently explicit to inform those

subject to it what acts it is their duty to avoid or what conduct on their part will render them

liable to its penalties, and no one may be required, at the peril of life, liberty, or property to guess

3
at, or speculate as to, the meaning of a penal statute.” Rose at 443-44 (quoting Surplus Store, Inc.

v. Hunter, 257 N.C. 206, 211 (1962)). (internal quotations omitted).

The void-for-vagueness doctrine requires that a penal statute define the criminal offense with

sufficient definiteness that ordinary people can understand what conduct is prohibited and in a

manner that does not encourage arbitrary and discriminatory enforcement. Kolender v. Lawson,

461 U.S. 352, 357 (1983) (citing Papachristou v. City of Jacksonville, 405 U.S. 156 (1972) et al.)

(Emphasis added.). “A criminal statute must be definite as to the persons within the scope of the

statute and the acts which are penalized. If it is not definite, the due process clause of State

Constitutions and of the Fifth and Fourteenth Amendments of the Federal Constitution,

whichever is applicable, is violated. If the statute is so vague and uncertain that a reasonable

man would be compelled to speculate at his peril whether the statute permits or prohibits the act

he contemplates committing, the statute is unconstitutional. The legislature, in the exercise of its

power to declare what shall constitute a crime or punishable offense, must inform the citizen

with reasonable precision what acts it intends to prohibit, so that he may have a certain

understandable rule of conduct. If on its face a criminal statute is repugnant to the due process

clause, specifications of details of the offense intended to be charged will not serve to validate it,

it being the statute and not the accusation under it that prescribes the rule to govern conduct and

warns against transgression…In determining whether a statute is sufficiently certain and definite

the courts apply higher standards in the case of a criminal than a civil statute…” State v. Hales,

256 N.C. 27, 32-33 (1961) (citing Wharton’s Criminal Law and Procedure, 1957, Vol. I, Section

18; 22 C.J.S., Criminal Law, Section 24(2)a; 14 Am. Jur., Criminal Law, Section 19; also citing

State v. Partlow, 91 N.C. 550 (1884)). (Emphasis added.)

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 In Papachristou v. City of Jacksonville, 405 U.S. 156 (1972) the United States Supreme

Court struck down as unconstitutionally vague a local vagrancy statute promulgated by the city

of Jacksonville, Florida. At the time in question, the relevant Jacksonville city ordinance

(Ordinance Code § 26-57) provided:

“Rogues and vagabonds, or dissolute persons who go about begging, common

gamblers, persons who use juggling or unlawful games or plays, common
drunkards, common night walkers, thieves, pilferers or pickpockets, traders in
stolen property, lewd, wanton and lascivious persons, keepers of gambling places,
common railers and brawlers, persons wandering or strolling around from place to
place without any lawful purpose or object, habitual loafers, disorderly persons,
persons neglecting all lawful business and habitually spending their time by
frequenting houses of ill fame, gaming houses, or places where alcoholic
beverages are sold or served, persons able to work but habitually living upon the
earnings of their wives or minor children shall be deemed vagrants and, upon
conviction in the Municipal Court shall be punished as provided for Class D
offenses.”

The Papachristou Court held that the Vagrancy Statute in question was unconstitutionally

vague for two distinct reasons: (1) the statute failed to give a person of ordinary intelligence fair

notice that his contemplated conduct is forbidden by the statute, and (2) the statute, due to the

nature of its vagueness, encouraged arbitrary and erratic arrests and convictions. Papachristou at

162. Both of these justifications for vagueness given by the Papachristou Court are explained in

further detail below.

(1) A statute should be declared void for vagueness when it fails to provide a person
of ordinary intelligence with notice of what conduct is prohibited under the
statute.

The Papachristou Court first found that the ordinance in question was unconstitutionally

vague because it “fail[ed] to give a person of ordinary intelligence fair notice that his

contemplated conduct is forbidden by the statute.” Papachristou at 162. In reaching that

5
determination, the Court explained, “Living under a rule of law entails various suppositions, one

of which is that all persons are entitled to be informed as to what the State commands or

forbids.” Id. (quoting Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939)). (internal quotation

marks omitted). Thereafter, the Papachristou Court scrutinized the Jacksonville ordinance and

rationalized why and which parts of that ordinance were unconstitutionally vague, explaining, in

relevant part:

a. The portion of the ordinance prohibiting “night walking” would, by its literal terms,
prohibit and criminalize conduct that would otherwise be entirely lawful and innocent
(e.g., a sleepless person’s decision to walk around at night in an attempt to relax and
thereby induce sleep could result in prosecution under the ordinance). (Papachristou
at 163); and
b. The portion of the ordinance punishing “Persons able to work but habitually living
upon the earnings of their wives or minor children,” could implicate men who had
simply made the decision to marry a wealthy wife, or likewise could implicate the
unfortunately unemployed individual who had lost his job due to no fault of his own
(e.g., due to recession or technological or structural displacements). (Id.); and
c. The portion of the ordinance punishing persons who are said to be “…neglecting all
lawful business and habitually spending their time by frequenting…places where
alcoholic beverages are sold or served…” would literally embrace (and punish) many
members of golf clubs and other clubs. (Id., at 164).

The Papachristou Court acknowledged that the ordinance in question did contain some

legitimate utility (e.g., “night walkers” could potentially be going to or coming from a burglary;

and likewise, a man “letting one’s wife support him” may be the setting for (i.e., allow time for)

that man to commit numerous crimes; etc.). Ultimately however, the Court held that any minimal

utility the ordinance may have had was far outweighed by the fundamental liberties that would

otherwise have been prohibited under the ordinance, explaining “The difficulty is that these

activities are historically part of the amenities of life as we have known them. They are not

mentioned in the Constitution or the Bill of Rights. These unwritten amenities have been in part

6
responsible for giving our people the feeling of independence and self-confidence, the feeling of

creativity. These amenities have dignified the right of dissent and have honored the right to be

nonconformists and the right to defy submissiveness. They have encouraged lives of high spirits

rather than hushed, suffocating silence.” Papachristou at 164. (Emphasis added.)

(2) A statute should be declared void for vagueness when, due to the inherent nature
of its vagueness, the statute encourages arbitrary and erratic arrests and
convictions.

The Papachristou Court also found that the Jacksonville city ordinance was

unconstitutionally vague due to “the effect of the unfettered discretion it places in the hands of

[law enforcement].” Papachristou at 168. In reaching that conclusion, the Court explained:

“Those generally implicated by the imprecise terms of the [Jacksonville city ordinance] [e.g.]

poor people, nonconformists, dissenters, idlers [etc.] may be required to comport themselves

according to the lifestyle deemed appropriate by the Jacksonville police and the courts. Where,

as here, there are no standards governing the exercise of the discretion granted by the ordinance,

the scheme permits and encourages an arbitrary and discriminatory enforcement of the law. It

furnishes a convenient tool for ‘harsh and discriminatory enforcement by local prosecuting

officials, against particular groups deemed to merit their displeasure.’” Papachristou at 170

(quoting Thornhill v. Alabama, 310 U.S. 88, 97-98 (1940)). The Court further held: “A

presumption that people who might walk or loaf or loiter or stroll or frequent houses where

liquor is sold, or who are supported by their wives or who look suspicious to the police are to

become future criminals is too precarious for a rule of law…[T]he rule of law implies equality

and justice in its application…The rule of law, evenly applied to minorities as well as majorities,

7
to the poor as well as the rich, is the great mucilage that holds society together.” Papachristou at

171.

Thus, the Papachristou Court also held that the Jacksonville city ordinance was

unconstitutionally vague because of “the effect of the unfettered discretion that the ordinance

placed in the hands of law enforcement.” Id. at 168. Here, the Court’s focus was not on the lack

of notice provided to individuals subject to the law (see above), but instead was on the potential

for abuse and discrimination in the enforcement of those laws by the police. The Court held that

the “unfettered discretion” that vague laws such as the one at issue in Papachristou provided to

law enforcement were foreign to our system of fairness and justice in the United States,

explaining “A presumption that people who might walk or loaf or loiter or stroll or frequent

houses where liquor is sold, or who are supported by their wives or who look suspicious to the

police are to become future criminals is too precarious for a rule of law. The implicit

presumption in these generalized [laws] – that vagrancy is being nipped in the bud – is too

extravagant to deserve extended treatment. Of course, [these generalized laws] are useful to the

police. Of course, they are nets making easy the roundup of so-called undesirables. But the rule

of law implies equality and justice in its application. [Laws] of the Jacksonville type teach that

the scales of justice are so tipped that even-handed administration of the law is not possible…

The Jacksonville ordinance [therefore] cannot be squared with our constitutional standards and is

plainly unconstitutional.” Papachristou at 171. (Emphasis added.)

Statutory Vagueness in the Context of Freedom of Expression – Winters v. New York

“It is settled that a statute so vague and indefinite, in form and as interpreted, as to permit

within the scope of its language the punishment of incidents fairly within the protection of the

8
guarantee of free speech is void, on its face, as contrary to the Fourteenth Amendment. A failure

of a statute limiting freedom of expression to give fair notice of what acts will be punished and

such a statute’s inclusion of prohibitions against expressions, protected by the principles of the

First Amendment, violates an accused’s rights under procedural due process and freedom of

speech or press.” Winters v. New York, 333 U.S. 507, 510-11 (1948) (citing Stromberg v.

California, 283 U.S. 359, 369 (1931); also citing Herndon v. Lowry, 301 U.S. 242, 258 (1937)).

(internal quotation marks omitted).

In Winters v. New York, a United States Supreme Court case addressing vagueness in the

context of the First Amendment, the Court struck down as unconstitutionally vague a New York

State statute which provided in relevant part:

Ҥ 1141. Obscene prints and articles

1. A person…who,

2. Prints, utters, publishes, sells, lends, gives away, distributes or shows, or has
in his possession with intent to sell, lend, give away, distribute or show, or
otherwise offers for sale, loan, gift or distribution, any book, pamphlet,
magazine, newspaper or other printed paper devoted to the publication, and
principally made up of criminal news, police reports, or accounts of criminal
deeds of bloodshed, lust or crime;…
….

Is guilty of a misdemeanor...” (Emphasis added.)

The defendant in Winters was a New York City book dealer convicted for having in his

possession (with the intent to sell) magazines of the type proscribed by the statute. Reversing the

lower court’s decision and ultimately declaring the statute unconstitutionally vague, the Winters

Court explained:

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 “The subsection of the New York [statute as currently drafted and interpreted by
the New York Court of Appeals], prohibits distribution of a magazine principally
made up of criminal news or stories of deeds of bloodshed or lust, so massed as to
become vehicles for inciting violent and depraved crimes against the person. But
even considering the gloss put upon the literal meaning by the [New York Court
of Appeals’] restriction of the statute to collection of stories “so massed as to
become vehicles for inciting violent and depraved crimes against the person…not
necessarily…sexual passion,” we find the specification of publications, prohibited
from distribution, too uncertain and indefinite to justify the conviction of this
petitioner. Even though all detective tales and treatises on criminology are not
forbidden, and though publications made up of criminal deeds not characterized
by bloodshed or lust are omitted from the interpretation of the [New York Court
of Appeals], we think fair use of collections of pictures and stories would be
interdicted because of the utter impossibility of the actor or the trier to know
where this new standard of guilt would draw the line between the allowable and
the forbidden publications. No intent or purpose is required – no indecency or
obscenity in any sense heretofore known to the law. “So massed as to incite
crime” can become meaningful only by concrete instances. This one example is
not enough. The clause proposes to punish the printing and circulation of
publications that courts or juries may think influence generally persons to commit
crimes of violence against the person…It is not an effective notice of new crime.
The clause has no technical or common law meaning…” Winters at 518-19.
(Emphasis added.)

The Winters Court thereafter summarized the crux of the vagueness issue as it related to

the statute in question, explaining, “[The statute] leaves open, therefore, the widest conceivable

inquiry, the scope of which no one can foresee and the result of which no one can foreshadow or

adequately guard against.” Winters at 519 (quoting United States v. L. Cohen Grocery Co. 255

U.S. 81, 89 (1921)).

Furthermore, in reaching its conclusion that the New York statute at issue was

unconstitutionally vague, the Winters Court specifically referenced and cited with approval the

case of State v. Klapprott, 127 N. J. L. 395 (1941) wherein a New Jersey statute was held invalid

on an attack against its constitutionality. The statute in Klapprott provided in relevant part:

10
 “Any person who shall, in the presence of two or more persons, in any language,
make or utter any speech, statement or declaration, which in any way incites,
counsels, promotes, or advocates hatred, abuse, violence or hostility against any
group or groups of persons residing or being in this state by reason of race, color,
religion or manner of worship, shall be guilty of a misdemeanor.”

The New Jersey Supreme Court in Klapprott justified its reasoning in declaring the

statute at issue there to be unconstitutional by explaining: “It is our view that the statute…by

punitive sanction, tends to restrict what one may say lest by one’s utterances there be incited or

advocated hatred, hostility or violence against a group ‘by reason of race, color, religion or

manner of worship.’ But additionally and looking now to strict statutory construction, is that

statute definite, clear and precise so as to be free from the constitutional infirmity of the vague

and indefinite? The terms ‘hatred,’ ‘abuse,’ ‘hostility,’ are abstract and indefinite admits of no

contradiction. When do they arise? Is it to be left to a jury to conclude beyond a reasonable

doubt when the emotion of hatred or hostility is aroused in the mind of the listener as a result of

what a speaker has said? Nothing in our criminal law can be invoked to justify so wide a

discretion. The criminal code must be definite and informative so that there may be no doubt in

the mind of the citizenry that the interdicted act or conduct is illicit.” Klapprott at 401-2.

(Emphasis added.)

Vagueness and N.C.G.S.A. §14-196.3(b)(2) – The Case at Hand

As it relates to the case at hand, N.C.G.S.A. §14-196.3(b)(2) (hereinafter the “Harassing

Communications Statute” or the “Statute”) is unconstitutionally vague because (1) the Statute

fails to give ordinary people fair notice of the activity that it prohibits, and (2) the Statute is so

11
standardless that it invites arbitrary enforcement by the government. Both of these arguments are

explained in greater detail below.

(1) The Harassing Communications Statute fails to give ordinary people fair notice of
the activity that it punishes.

N.C.G.S.A. §14-196.3(b)(2) provides:

“It is unlawful for a person to:

…

Electronically mail or electronically communicate to another repeatedly, whether

or not conversation ensues, for the purpose of abusing, annoying, threatening,
terrifying, harassing, or embarrassing any person.”

At the outset, the Statute is vague because it fails to define critical operative terms. The

terms “abusing,” “annoying,” “threatening,” “terrifying,” “harassing,” and

“embarrassing,” (hereinafter the “Terms”) are not defined anywhere in the Statute itself. Thus,

citizens are left to guess, at their peril, as to the intended meanings of the Terms (as understood

within the context of the statute). The absence of any definition for the Terms (even mere

dictionary definitions) is particularly troubling because the Statute dedicates a subsection

specifically for definitions 3 wherein it defines words such as “Electronic communication,”

“Electronic mail,” “Electronic tracking device,” and “Fleet vehicle,” but fails to define any of the

Terms (“abusing,” “annoying,” etc.). The Statute could have easily included definitions of the

Terms, but did not, opting instead to define terms such as “Fleet vehicle,” which has no direct

impact on the criminal consequences affecting citizens charged under the Statute – in contrast to

the Terms, which are necessary in determining whether an individual has violated the Statute. By

failing to in any way define the Terms, the Statute forces citizens into an unfortunate position

3 See N.C.G.S.A. §14-196.3(a)(1-4)

12
whereby they must speculate, at their peril, as to what conduct could or could not be punished

under the Statute. In doing so, the Statute is literally “failing to give notice of the activity that it

punishes,” and placing citizens at risk of criminal prosecution for expressing their First

Amendment rights.

The Statute is also vague due to the subjective nature inherent in the undefined Terms

themselves. The Terms are by their very nature so subjective that an ordinary citizen would

necessarily be forced to guess as to their contextual meaning. What is considered “abusing” or

“embarrassing” communication to one person is very likely completely appropriate and harmless

communication in the mind of another person. What is considered “embarrassing” or “annoying”

to an eighty-seven year old grandmother is likely very different from what is considered

“embarrassing” or “annoying” to the grandmother’s twenty-one year old granddaughter, for

example. No citizen can be expected to know the infinite possible reactions and attendant

subjective interpretations that his or her speech could evoke in the minds of others. Forcing an

individual, upon threat of criminal prosecution, to guess as to what and which parts of his or her

speech could potentially be construed as “abusing, annoying, threatening, terrifying, harassing,

or embarrassing” from the perspective of every other individual member of society is an

untenable proposition which has the effect of chilling the fundamental liberties of free speech

and free expression specifically and diligently protected by the First Amendment.

Furthermore, the Statute’s use of the adverb “repeatedly” makes it unclear how much

“Electronic mail” and/or “Electronic communication” an individual can send before he or she

becomes subject to prosecution under the Statute. Specifically, the Statute provides “It is

unlawful for a person to electronically mail or electronically communication to another

13
repeatedly, whether or not conversation ensues, for the purpose of abusing, annoying…

etc.” (Emphasis added.) Does the use of the adverb “repeatedly” indicate that the state prosecute

an individual who sends only two “Electronic communications?” Or, must the individual send

more than two such communications before he or she can be prosecuted? Would three electronic

communications be enough for the state to prosecute the sender? The Statute’s failure to provide

ordinary citizens with notice of how many communications are necessary to constitute

“repeated” communication (and thus subject that citizen to prosecution) is indefinite,

unreasonably uninformative, and unconstitutionally vague (especially considering the criminal

nature of the Statute).

(2) The Statute encourages arbitrary and erratic arrests and convictions due to the
inherent nature of the Statute’s vagueness.

The Statute, due to the inherent nature of its vagueness (see above), encourages arbitrary and

erratic arrests and convictions by law enforcement. Similar to the statute at issue in

Papachristou, the Statute here “furnishes a convenient tool for harsh and discriminatory

enforcement by local prosecuting officials, against particular groups deemed to merit their

displeasure.” Papachristou at 170. The vagueness inherent in the Statute provides law

enforcement (and local prosecuting officials) with unreasonable discretion to selectively

prosecute only those individuals whom the state believes should be silenced or whom the state

considers to be a nuisance. Such selective enforceability is precisely the type of unfettered

discretion that the First Amendment is designed to prevent. Statutes, especially criminal statutes,

must be drafted with the requisite specificity to both: (1) put citizens on notice of the activity that

the statute prohibits (see above), and (2) prevent law enforcement from arbitrarily enforcing such

14
laws. In the criminal context, the potential consequences for failing to draft a statute that

accomplishes both of the aforementioned goals could be the loss of an individual’s freedom, in

direct violation of the constitution. In the case at hand, for example, the Statute’s failure to

provide any guidance as to the adverb “repeatedly” (see above), by its terms allows law

enforcement the ability to prosecute and punish individuals who send 10,000 “harassing

communications” (arguably the intended target audience of the Statute) as well as an individual

who sends only two “harassing communications” (likely not the target audience of the Statute).

Ultimately, the question is, where is the line drawn? What safeguard is in place to prevent the

state from using the Statute as a means to selectively silence individuals who have unpopular but

protected opinions (such advocacy being a right afforded continuous and fervent protection by

the First Amendment since the amendment’s adoption)?

II. As drafted, N.C.G.S.A. §14-196.3(b)(2) is overbroad because it makes unlawful a

substantial amount of constitutionally protected conduct, in violation of the First
and Fourteenth Amendments to the United States Constitution as well as Article I,
§§14 and 19 of the North Carolina Constitution and, as a result, the statute is both
facially unconstitutional and unconstitutional as applied to Mr. Fuller.

In a facial challenge to the overbreadth of a law, a court’s first task is to determine whether

the statute reaches a substantial amount of constitutionally protected conduct. Houston v. Hill,

482 U.S. 451, 458 (1987). Criminal statutes must be scrutinized with particular care, those that

make unlawful a substantial amount of constitutionally protected conduct may be held facially

invalid even if they also have legitimate application. Id., at 459. Furthermore, criminal statutes

purporting to prohibit or restrain an individual’s freedom of speech are subject to an even greater

degree of judicial scrutiny (see Broadrick v. Oklahoma, 413 U.S. 601, 611-12 (1973) holding “It

has long been recognized that the First Amendment needs breathing space and that statutes

15
attempting to restrict or burden the exercise of First Amendment rights must be narrowly drawn

and represent a considered legislative judgment that a particular mode of expression has to give

way to other compelling needs of society…As a corollary, the Court has altered its traditional

rules of standing to permit [in the First Amendment context] attacks on overly broad statutes

with no requirement that the person making the attack demonstrate that his own conduct could

not be regulated by a statute drawn with the requisite narrow specificity. Litigants, therefore, are

permitted to challenge a statute not because their own rights of free expression are violated, but

because of a judicial prediction or assumption that the statute’s very existence may cause others

not before the court to refrain from constitutionally protected speech or expression.” (internal

quotation marks omitted). (Emphasis added.)

In Houston v. Hill, the United States Supreme Court struck down a municipal ordinance4

promulgated by the city of Houston, Texas which provided in relevant part:

“Sec. 34-11. Assaulting or interfering with policemen. “(a) It shall be unlawful for
any person to assault, strike or in any manner oppose, molest, abuse or interrupt
any policemen in the execution of his duty…”

The Hill Court justified its holding that the Houston ordinance was unconstitutionally

overbroad by explaining that: (1) the ordinance regulated actual speech, not merely core criminal

conduct (see Hill at 460-61 holding “…the ordinance makes it ‘unlawful for any person to…in

any manner oppose, molest, abuse or interrupt any policeman in the execution of his duty,’ and

thereby prohibits verbal interruptions of police officers”); and (2) the First Amendment actually

protects a significant amount of verbal criticism and challenge directed at police officers by

citizens (see Id., at 461 holding “Speech is often provocative and challenging…But it is

4 See Code of Ordinances, City of Houston Texas, § 34-11(a) (1984)

16
nevertheless protected against censorship or punishment, unless shown likely to produce a clear

and present danger of a serious substantive evil that rises far above public inconvenience,

annoyance, or unrest”). (Emphasis added.) Thus, the Hill Court reaffirmed the notion that some

types of speech could be regulated by such an ordinance (e.g., fighting words, obscenity, etc.).

However, the Court also made it clear that the First Amendment provides a definitive protection

to citizens wishing to voice their opposition to or about law enforcement personnel (see Hill at

462-63 holding “The Constitution does not allow such speech to be made a crime. The freedom

of individuals verbally to oppose or challenge police action without thereby risking arrest is one

of the principle characteristics by which we distinguish a free nation from a police state.”).

Overbreadth and N.C.G.S.A. §14-196.3(b)(2) – The Case at Hand

N.C.G.S.A. §14-196.3(b)(2) (the “Statute”) is unconstitutionally overbroad because it

makes unlawful a substantial amount of constitutionally protected conduct. Specifically, the

Statute’s overbreadth prohibits or chills a substantial amount of speech that is protected by the

First Amendment. In the present case for example, the communication(s) (i.e., “speech”) at issue

are approximately twelve electronic messages (hereinafter the “E-mails” or “E-mail”). All of the

E-mails at issue in this case advocate for, or discuss generally, a particular political, social, and/

or religious issue or viewpoint that is relevant in today’s society. For example, the E-mails

discuss: political lobbying by state employees; political activism in regards to North Carolina’s

House Bill 2; transgenderism and other “Lesbian Gay Bisexual Transgender” (“LGBT”)

ideologies; religion – specifically the Catholic Church’s formal institutional position regarding

the LGBT community; scientific discourse and debate regarding the concept of transgenderism;

etc. All of the speech contained within the E-mails at issue in this case discuss topical and

17
important political/social/religious issues currently facing American society. This speech is

exactly the type of “classic political speech” that contributes to the “marketplace of ideas” so

adamantly protected by the First Amendment (see Boos v. Barry, 485 U.S. 312, 343 (1988)

(holding “[The United States Supreme Court has] recognized that the First Amendment reflects a

profound national commitment to the principle that debate on public issues should be

uninhibited, robust, and wide-open, and ha[s] consistently commented on the central importance

of protecting speech on public issues.”) The notion that certain citizens find such speech

unappealing, uncomfortable, or offensive is certainly not sufficient to restrict the ability of other

citizens to advocate on behalf of their firmly held political/social/religious beliefs. In fact,

disagreement by citizens on such issues is exactly the type of “debate on public issues” that the

Supreme Court in Boos v. Berry specifically held “should be uninhibited, robust, and wide-

open…” If citizens did not have opposing viewpoints on important political/social/religious

issues there would, in point of fact, be no “debate on public issues” and the First Amendment

would thereby serve no purpose. Because N.C.G.S.A. §14-196.3(b)(2) restricts such protected

political/social/religious speech, it is overbroad and therefore unconstitutional.

III. As drafted, N.C.G.S.A. §14-196.3(b)(2) violates the First Amendment to the United
States Constitution5 because the statute is an impermissible content-based
restriction on protected speech that is not narrowly tailored to achieve a compelling
government interest and, as a result, the statute is both facially unconstitutional and
unconstitutional as applied to Mr. Fuller.

Background

This portion of the Memorandum argues that the Harassing Communications Statute is

unconstitutional because it is a content-based regulation of protected speech that fails to satisfy

5 Made applicable to the states by the 14th Amendment to the United States Constitution.

18
the demands of strict scrutiny review. In the interest of clarity, this “Background” provides a

brief explanation of the ensuing argument contained within this portion (portion “III”) of this

Memorandum of Law.

First, the concept of “protected” vs. “unprotected” speech is discussed (see ““Protected”

speech vs. “Unprotected” speech” below). The protected vs. unprotected speech distinction is

important because, with limited exceptions, only regulations of speech that is “protected” by the

First Amendment is subject to strict scrutiny review. In this case, the speech in question is

protected by the First Amendment and thus regulations of this speech are subject to strict

scrutiny review because (1) the E-mails at issue in this case are classically protected

“speech” (i.e., the written word discussing political, religious, and social issues), and (2) the E-

mails at issue in this case do not rise to the level of unprotected speech (e.g., “obscenity,”

“fighting words,” or “hate speech”). For reasons explained in greater detail below, the “speech”

at issue in this case is classically protected speech and not “unprotected speech” (e.g., in the form

of “obscenity,” “fighting words,” or “hate speech,” etc.). As a result, any regulation of the speech

at issue in this case should be subject to strict scrutiny review.

Second, this portion of the Memorandum also discusses the distinction between “content”

regulations and “conduct” regulations (see ““Content” regulations vs. “Conduct” regulations”

below). Similar to the “protected” vs. “unprotected” speech distinction, the “content” vs.

“conduct” distinction is important because only those regulations that regulate the content of

speech are subject to strict scrutiny analysis (i.e., the government must prove that the regulation

is narrowly tailored to achieve a compelling government interest), as opposed to regulations of

conduct, which receive lesser “intermediate scrutiny” analysis (i.e., the government must prove

19
that the regulation is substantially related to an important government interest). For reasons

explained in greater detail below, the Harassing Communications Statute regulates the content of

speech and therefore is subject to strict scrutiny analysis.

Third, for reasons explained in greater detail below (see “The Harassing Communications

Statute Fails to Satisfy Strict Scrutiny”), the Harassing Communications Statute is not

“narrowly tailored” to achieve a “compelling government interest” and therefore fails to satisfy

the demands of strict scrutiny. Because the Statute is a content-based regulation on protected

speech that fails to satisfy the demands of strict scrutiny, the Statute is unconstitutional.

“Protected” speech vs. “Unprotected” speech

In R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), the United States Supreme Court

succinctly discussed the concept of “protected” vs. “unprotected” speech in the context of First

Amendment protections, explaining “The First Amendment generally prevents government from

proscribing speech, or even expressive conduct, because of disapproval of the ideas expressed...

From 1791 to the present, however, our society, like other free but civilized societies, has

permitted restrictions upon the content of speech in a few limited areas, which are of such slight

social value as a step to truth that any benefit that may be derived from them is clearly

outweighed by the social interest in order and morality.” R.A.V. at 382-83. Acknowledging that

First Amendment protections are not unrestrained in their application, the R.A.V. Court thereafter

referenced instances of historically unprotected speech, including: obscenity (see Roth v. United

States, 354 U.S. 476 (1957), defamation (see Beauharnais v. Illinois, 343 U.S. 250 (1952), and

fighting words (see Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)).

20
 As it relates to the case at hand, any and all speech at issue in this case is political and or

religious speech that is and should be afforded full constitutional protection by the First

Amendment. However, anticipating that the State may argue that the speech at issue in this case

is unprotected speech, the following portion of this Memorandum of Law argues in support of

classifying all of Mr. Fuller’s speech as politically and or religiously protected speech.

Additionally, some categories of unprotected speech (e.g., defamation, libel, prior restraint) are

clearly inapplicable as it relates to this case. As a result (and to the extent that the State does not

argue that the speech in question in this case qualifies as defamation, libel, or a prior restraint),

those categories of unprotected speech are not addressed within this Memorandum of Law.

However, it being likely that the State may argue that the speech in question in this case is

unprotected speech in the form of: (1) obscenity, (2) fighting words, or (3) hate speech, these

three forms of unprotected speech, and the reasons why the speech at issue in this case do not

qualify for classification thereunder, are addressed individually below.

(1) Obscenity – Miller v. California

In Miller v. California, 413 U.S. 15 (1973) the United States Supreme Court formulated the

test for determining whether particular material qualifies as “obscene” and is thus subject to

lower constitutional protection. Pursuant to Miller, the basic guideline for the trier of fact to use

in determining whether certain material is obscene is:

(a) whether the average person, applying contemporary community standards

would find that the work, taken as a whole, appeals to the prurient interest;
and
(b) whether the work depicts or describes, in a patently offensive way, sexual
conduct specifically defined by the applicable state law; and
(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or
scientific value. (see Miller at 24).

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 After clarifying the standard for determining whether certain material qualifies as

“obscene,” the Miller Court further explained “Under the holdings announced today, no

one will be subject to prosecution for the sale or exposure of obscene materials unless

these material depict or describe patently offensive hard core sexual conduct specifically

defined by the regulating state law, as written or construed.” Miller at 27. (Emphasis

added.) Thus, pursuant to Miller, for material to qualify as obscene the following

conditions must exist: (1) the average person, applying contemporary community

standards must find that the work, taken as a whole, appeals to the “prurient interest;” (2)

the work must depict or describe, in a patently offensive way, sexual conduct that has

been specifically defined by the law of the state in question; and (3) the work, taken as a

whole, must lack serious literary, artistic, political, or scientific value (see below).

In the case at hand, the speech in question is not obscene because:

(1) The average person, applying contemporary community standards would not find that the
E-mails, taken as a whole, appeal to the “prurient interest.” - The Miller Court defined
“prurient interest” as “a shameful or morbid interest in nudity, sex, or excretion, which
goes substantially beyond customary limits of candor in description or representation of
such matters and is matter which is utterly without redeeming social importance.” (Miller
FN 1). As it relates to the case at hand, there is nothing “prurient” about the substance of
the messages contained within the E-mails or the ideas conveyed therein. There are, for
example, cartoon representations of “traditionally accepted” sexual positions for male/
female “Penis in Vagina” (“PiV”) sex. However, these are cartoon diagrams, they do not
portray in any way whatsoever any sexual organ (male or female), nor do they promote a
“shameful or morbid interest in nudity, sex or excretion…”

(2) The E-mails do not depict or describe, in a patently offensive way, sexual conduct that
has been specifically defined by North Carolina law. - As it pertains to the case at hand,
N.C.G.S.A. §14-190.1(c)(1), entitled “Obscene literature and exhibitions,” defines “sexual
conduct” as “Vaginal, anal, or oral intercourse, whether actual or simulated, normal or
perverted.” The cartoon representations at issue in this case do depict “simulated vaginal
intercourse” but they do not depict such intercourse in a patently offensive way.

22
 (Emphasis added.) Instead, the cartoon representations depict intercourse between a male
and female person, much like an educational or medical book depicting recommended
positions of sexual intercourse intended to promote conception. Again, no sexual organs,
male or female, are shown in the cartoon illustrations at issue in this case.

(3) The E-mails, taken as a whole, do not lack serious literary, artistic, political, or scientific
value. - In the context of the entirety of the E-mails (i.e., viewing the E-mails “as a
whole”), the cartoon illustrations are obviously intended to promote principles of
consensual heterosexual intercourse between a husband and wife for the purpose of
conceiving children (i.e., an act which is not “naturally” (i.e., scientifically) possible
between homosexual couples). Thus, at a minimum the cartoon illustrations do contain
political and scientific value for individuals who adhere to and promote conservative
religious values.

(2) Fighting Words – Cohen v. California

In Cohen v. California, 403 U.S. 15, 20 (1971) the United States Supreme Court defined

“fighting words” as “those personally abusive epithets which, when addressed to the ordinary

citizen, are, as a matter of common knowledge, inherently likely to provoke violent

reaction” (quoting Chaplinksy v. New Hampshire, 315 U.S. 568 (1942)). (Emphasis added.) At

issue in Cohen was a California statute which prohibited “maliciously and wilfully disturbing the

peace or quiet of any neighborhood or person…by…offensive conduct…” Cohen at 16. A

California resident was charged under the statute for wearing a jacket with the words “Fuck the

Draft” plainly written on the back of the jacket while he was attending court in Los Angeles

County. Cohen at 16. The United States Supreme Court held that the defendant’s actions in

Cohen (i.e., the wearing of the jacket), (1) constituted protected speech, and (2) that the speech

was not considered “fighting words” because there was “no showing that anyone who saw [the

defendant’s jacket] was in fact violently aroused…” Cohen at 20. The Cohen Court’s analysis of

“fighting words” focused specifically on the dangers that “fighting words” pose to “provoke

violent reaction” in those individuals who hear (or read) the speech/message being conveyed.

23
Thus, pursuant to Cohen, in the context of “fighting words” it is not the message itself that is at

issue, but the inherent tendency of that message to provoke or incite imminent violent reaction

(i.e., the focus is not on the message itself but whether that message is likely to provoke

immediate violent reaction on the part of listeners).

In the case at hand, the speech in question was not conveyed in person (i.e., face to face) as

was the case in Cohen. Rather, the messages in this case were conveyed via e-mail. Except in the

most limited of circumstances (e.g., an individual e-mailing another person who is in the same

room as the speaker/sender at that time the e-mail is sent), information that is conveyed via e-

mail, regardless of the content, does not fall within the Cohen Court’s standard of “inherently

likely to provoke violent reaction” (i.e., “fighting words”) specifically because the speaker is not

in the presence of the listener, and thus the fear that the listener(s) will react violently against the

speaker (or react violently) are tremendously diminished and/or nonexistent. In the case at hand,

there is no evidence to indicate that the E-mails in question were ever sent while the speaker/

sender and the listener/recipient were in the same location. Further, for the same reason, there is

evidence to indicate that the E-mails in this case were “inherently likely to provoke violent

reaction.” Because the E-mails in this case were not “inherently likely to provoke violent

reaction” they are not considered “fighting words.”

(3) Hate Speech – R.A.V. v. St. Paul

In R.A.V. v. St. Paul, 505 U.S. 377 (1992) the United States Supreme Court struck down a St.

Paul, Minnesota ordinance 6 which provided: “Whoever places on public or private property a

symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning

6 See St. Paul, Minn., Legis. Code § 292.02 (1990)

24
cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger,

alarm or resentment in others on the basis of race, color, creed, religion or gender commits

disorderly conduct and shall be guilty of a misdemeanor.” R.A.V. at 380. Several teenagers were

prosecuted under the ordinance for allegedly burning a cross on the yard of a black family that

lived in the city of St. Paul. The city of St. Paul, arguing that the ordinance was constitutional

because it sought to regulate the “secondary effects” of speech as opposed to the content of the

speech itself (see Renton v. Playtime Theatres, Inc. below), attempted to justify the ordinance on

the grounds that the ordinance was intended “not to impact on the right of free expression” (i.e.,

an individual’s right to free speech), but rather to “protect against the victimization of a person or

persons who are particularly vulnerable because of their membership in a group that historically

has been discriminated against,” (i.e., the secondary effects sometimes attendant to the

expression of an individual’s free speech). R.A.V. at 394. The Supreme Court, ruling against the

city of St. Paul, rejected the city’s argument, holding “Even assuming that an ordinance that

completely proscribes, rather than merely regulates, a specified category of speech can ever be

considered to be directed only to the secondary effects of such speech, it is clear that the St. Paul

ordinance is not directed to secondary effects within the meaning of Renton. As [the Supreme

Court held] in Boos v. Barry, 485 U.S. 312 (1988), [l]istener’s reactions to speech are not the

type of ‘secondary effects’ we referred to in Renton. The emotive impact of speech on its

audience is not a ‘secondary effect.’” R.A.V. at 394 (quoting Boos v. Barry at 321).

In the case at hand, as in R.A.V., the Harassing Communications Statute cannot be upheld

as a regulation of the “secondary effects” of free expression because the secondary effects of the

speech at issue in the case at hand, as in R.A.V., are the “listener’s reactions to the speech” and

25
the “emotive impact of speech on its audience.” In R.A.V., the state attempted to justify the

ordinance on the grounds that the “secondary effects” of the speech that the state was attempting

to regulate (i.e., hate speech), were sufficiently compelling to outweigh the speaker’s

constitutional right to free expression. In making its argument, the state in R.A.V. analogized the

facts at issue there with the facts at issue in Renton v. Playtime Theatres, Inc. (wherein, the

Supreme Court upheld a city zoning ordinance which prohibited adult movie theaters from

locating within a certain distance of houses, schools, churches, etc. because of the “secondary

effects” such adult establishments could have on crime rates, property values, etc. (see below)).

However, the Court in R.A.V. determined that the interest present there (i.e., listener’s reactions to

speech vis-à-vis the emotive impact of speech on its audience) was not a “secondary interest”

and therefore the speaker’s constitutional right to free speech could not be infringed, whereas in

Renton, the Court determined that the state’s interests (e.g., property values, crime rates, retail

trade, etc.) that would be affected by the presence of adult movie theaters (i.e., “speech”) was a

“secondary interest” sufficient to infringe upon the speaker’s right to free speech (i.e., the adult

movie theater owners’ right to locate where they desired).

R.A.V. stands for the proposition that the impact that certain speech may have on a

listener (in R.A.V., the impact that burning a cross in the yard of a black family has on that

family), is not, in and of itself, sufficient to justify limiting the speaker’s First Amendment rights.

The R.A.V. Court emphasized, rightfully so, that certain speech (e.g., burning a cross on the yard

of a black family) is reprehensible (see R.A.V. at 396). However, the Court noted that such

reprehensible conduct is not sufficient, in itself, to restrict an individual’s First Amendment

freedoms (see R.A.V. at 396 holding “Let there be no mistake about our belief that burning a

26
cross in someone’s front yard is reprehensible. But St. Paul has sufficient means at its disposal to

prevent such behavior without adding the First Amendment to the fire.”). In the case at hand, as

in R.A.V., the state of North Carolina cannot justify limiting a citizen’s First Amendment right to

free speech based upon the reactions that listeners may (or may not) have to receiving (i.e.,

hearing) such speech. The Harassing Communications Statute, like the ordinance at issue in

R.A.V., is fundamentally flawed in that it is designed to protect listeners from the potentially

negative secondary effects (i.e., “emotive impacts”) that free speech may, from time to time,

have on certain listeners. The First Amendment does not allow our right to free speech to be

restricted based upon the possibility that a particular listener’s internalization of a certain

message may not be a positive experience for that listener. The progression of a democratic

society depends upon the ability and opportunity for robust and thorough discussion and debate

concerning a wide variety of topics. Such discussion and debate must necessarily include

individuals from different walks of life who carry with them diverse points of view. Laws which

restrict such progress, laws that silence those with unpopular points of view, laws such as the

Harassing Communications Statute, are directly at odds with the fundamental principles of the

First Amendment and should therefore be declared unconstitutional. Because the Harassing

Communications Statute, like the statute at issue in R.A.V., is a content-based regulation of

speech that is principally designed to protect listeners from the negative “secondary effects” of

certain speech, the statute is unconstitutional as violative of the First Amendment.

“Content” regulations vs. “Conduct” regulations

Determining whether a particular law regulates speech “content” or whether that law

regulates “conduct” is an important distinction because different levels of scrutiny apply to laws

27
that regulate content (i.e., strict scrutiny), versus laws that regulate conduct (i.e., intermediate

scrutiny). In Hest Techs., Inc. v. State ex rel. Perdue, 366 N.C. 289, 298 (2012), the North

Carolina Supreme Court discussed the different level of analysis applied to laws that regulate the

“content” of speech versus the level of analysis applied to laws that regulate “conduct,”

explaining “Regulation of so-called pure speech, a term that most often refers to political

advocacy, must pass strict scrutiny…[Alternatively] [r]egulation of…conduct that involves both

speech and nonspeech elements…must pass only intermediate scrutiny.” Thus, laws that regulate

the “content” of speech are subject to strict scrutiny review (i.e., the government must show a

compelling interest in the regulation, and the regulation must be narrowly tailored to achieve that

interest), whereas laws that regulate “conduct” are subject to intermediate scrutiny review (i.e.,

the government must show an important or substantial government interest, a direct relationship

between the regulation and the interest, and the regulation in question must be no more

restrictive than necessary to achieve that interest). Hest at 298 (citing Ariz. Free Enter. Club’s

Freedom Club PAC v. Bennett, 131 S. Ct. 2806, 2817 (2011); United States v. O’Brien, 391 U.S.

367, 376 (1968); also citing Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)).

A North Carolina Statute Regulating “Content” – State v. Bishop

In State v. Bishop, 368 N.C. 869 (2016), the North Carolina Supreme Court struck down

as unconstitutional a state cyberbullying statute 7 that provided in relevant part “It is unlawful for

any person to use a computer or computer network to post or encourage others to post on the

internet private, personal, or sexual information pertaining to a minor with the intent to

intimidate or torment a minor.” Bishop at 869-870. Holding that the statute regulated content (not

7 See N.C. Gen. Stat. § 14-458.1(a)(1)(d) (2015)

28
conduct) the Bishop Court explained “We are satisfied that [the statute at issue here] applies to

speech and not solely, or even predominantly, to nonexpressive conduct. As noted, the statute

prohibits anyone, on threat of criminal punishment, from posting or encouraging others to post

on the internet any private, personal, or sexual information pertaining to a minor with the intent

to intimidate or torment a minor. In contrast with the statute we upheld in Hest, which proscribed

operating or placing into operation an electronic machine or device to conduct a sweepstakes,

this statute outlawed posting particular subject matter, on the internet, with certain intent. The

statute at issue in Hest regulated conduct, the statute here regulates protected speech.” Bishop at

873. (Emphasis added.) As it relates to content regulation, the Bishop Court went on to

emphasize “Here, it is clear that the cyberbullying statute is content based, on its face and by its

plain text, because the statute defines regulated speech by its particular subject matter. The

provision under which [the defendant in Bishop] was arrested and prosecuted prohibits posting or

encouraging others to post private, personal, or sexual information pertaining to a minor. The

statute criminalizes some messages but not others, and makes it impossible to determine whether

the accused has committed a crime without examining the content of his communication.” Bishop

at 876. (Emphasis added.)

In the case at hand, similar to Bishop, the Harassing Communications statute is a content-

based regulation that, by its very terms “makes it impossible to determine whether the sender/

accused has committed a crime without first examining the content of the sender/accused’s

communication.” For example, the recipient of an e-mail cannot know whether he or she

personally feels “abused, annoyed, threatened, terrified, harassed, or embarrassed” without first

inspecting the content of the e-mail that was delivered. If the recipient of the e-mail never reads

29
the e-mail, then the recipient cannot know whether he or she would have felt “abused, annoyed,

threatened, etc.” It is only upon inspection of the communicative message contained with the e-

mail itself (i.e., only after reading the message and synthesizing its content) that the recipient can

thereby formulate the cognitive awareness (or lack thereof) of feelings of “abuse, annoyance,

etc.” The recipient’s mental process involves both (1) reading the sender/accused’s e-mail, and

(2) personally formulating a subsequent “cognitive awareness”/mental impression(s) of the

message contained with the e-mail. This two part process necessarily requires that the content of

the message be internalized, scrutinized, and rationalized in the mind of the recipient and further

necessitates that thereafter, a determination be made (in the mind of the recipient) as to whether

the content of that message is “appropriate”, or, alternatively, whether that the content of that

message is considered “abusive, annoying, threatening, etc.” The First Amendment prevents the

imposition of criminal punishment based on such subjective content-based determinations as

those required under the Harassing Communications Statute. The content-based distinction

inherent in the Harassing Communications Statute necessarily results from the Statute’s

vagueness (i.e., the Statute’s fatal flaw is that, per its’ terms, there will always necessarily be a

distinction in the content of the messages that the Statute purports to regulate because different

people will naturally interpret different messages in different ways). Here, as in Bishop, the

Harassing Communications statute is an unconstitutional content-based regulation because it:

(1) “outlaws the posting of particular subject matter on the internet” (i.e., the
Harassing Communications Statute prohibits an individual from sending
subject matter that is subjectively considered “abusive, annoying, threatening,
terrifying, harassing, or embarrassing” to any recipient who may read the
subject matter)…

30
 (2) “with certain intent” (i.e., the individual must send the subject matter for the
purpose of “abusing, annoying, threatening, terrifying, harassing, or
embarrassing any person”).

The fact that the Harassing Communications Statute does not specifically identify what

communication(s) are “abusive, annoying, threatening, etc.” does not make the Statute content-

neutral. Instead, the Statute’s failure to define the specific subject matter that it purportedly

intends to regulate only serves to: (1) make the Harassing Communications Statute more vague,

and (2) impermissibly forces the sender of the communication, upon threat of criminal

prosecution, to necessarily guess as to what and which parts of the content that he or she intends

to send will be considered “abusive, annoying, etc.” by the recipient, versus what content will be

“acceptable” to recipients of the message. As a result, the Harassing Communications Statute

necessarily makes a distinction between certain content that is deemed legal (i.e., not “abusive,

annoying, etc.”) verses content that is deemed illegal (i.e., content that is considered “abusive,

annoying, etc.”). The only way to determine whether an individual has violated the statute is

literally to inquire the recipient of that message as to whether he or she considered the message

to be “abusive, annoying, etc.” Such content-based regulations are “presumptively

unconstitutional and may only be justified only if the government proves that they are narrowly

tailored to serve compelling state interests.” (see Reed v. Town of Gilbert at 2226 below).

A North Carolina Statute Regulating “Conduct” – Hest Techs., Inc. v. State ex rel. Perdue

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 In Hest Techs., Inc. v. State ex rel. Perdue, the North Carolina Supreme Court upheld as a

permissible conduct regulation, a state statute 8 that, in relevant part, made it unlawful to

“operate, or place into operation, an electronic machine or device to conduct a sweepstakes

through the use of an entertaining display.” Hest at 292. Finding that the statute in question was a

constitutional regulation of non-communicative conduct (as opposed to protected speech (i.e.,

content)), the Hest Court justified its reasoning, explaining “[Our] conclusion turns directly on

how we describe what [the statute does]. The statute here makes it “unlawful for any person to

operate, or place into operation, an electronic machine or device” to “conduct a sweepstakes

through the use of an entertaining display.” Operating or placing into operation an electronic

machine is clearly conduct, not speech. We conclude that the act of running a sweepstakes is

conduct rather than speech.” Hest at 296. (Emphasis added.) The Plaintiffs (sweepstakes

owners/marketers/supporters) in Hest unsuccessfully argued that the video games within the

sweepstakes machines themselves (i.e., the “entertaining display”/interactive gaming component

within the machines) represented speech protected by the First Amendment. Id. at 297. The

Court, rejecting the Plaintiffs’ argument, explained “The flaw in [the Plaintiffs’] argument is that

the statute does not prohibit the video games, only the conduct of a sweepstakes that happens to

announce its result through such video games…[P]laintiffs are free to provide the video games to

their patrons and their patrons are free to play them – and thus make and receive whatever

protected message is communicated by the video game – so long as the games are not associated

with the conduct of a payoff. ” Id.

8 See N.C. Gen. Stat. § 14.306.4 (2011)

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 In the case at hand, unlike the statute at issue in Hest (which was designed to literally

regulate the physical conduct of “…operating, or placing into operation, an electronic machine or

device to conduct a sweepstakes…”), the Harassing Communications Statute is not designed to

regulate merely conduct. For example, the Harassing Communications Statute is not intended to

literally prevent an individual from engaging in the specific facilitative conduct necessary to

create and send an e-mail (i.e., powering on his or her computer, opening up a word document,

using his or her fingers to enter keystrokes onto a keyboard that the computer will thereafter

compute into letters, attaching that document into an e-mail, sending that e-mail to a recipient,

etc.). Applying such a literal interpretation to the Statute would be untenable and would not

accomplish the Statute’s intended purpose. Instead, a more appropriate interpretation of the

purpose of the Harassing Communications Statute is that it is intended to regulate the

communicative content (see below) of the messages (i.e., the idea(s) contained within the

message(s) conveyed from the mind of the sender to the mind of the recipient), as opposed to the

facilitative conduct by which that communicative content was created (i.e., the sender’s

powering on his or her computer, opening up a word document, using his or her fingers to enter

keystrokes…etc. (all conduct necessary in order to create a message)). Because the Harassing

Communications Statute is designed to regulate the communicative content contained within

electronic communications (i.e., what an individual says) as opposed to the facilitative conduct

(i.e., what an individual does) by which that communicative content is created, the Statute is a

content-based regulation, similar to the regulation at issue in Bishop, the Statute is not a

regulation of conduct as in Hest, and therefore the Harassing Communications Statute is subject

to strict scrutiny.

33
 Content-based laws are subject to strict scrutiny

The First Amendment to the United States Constitution, applicable to the states via the

Fourteenth Amendment to the United States Constitution, prohibits the enactment of laws

“abridging the freedom of speech.” Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) (quoting

U.S. Const., Amdt. 1.). Pursuant to the constitutional liberties guaranteed citizens by the First

Amendment, a government “has no power to restrict expression because of its message, its ideas,

its subject matter, or its content.” Reed at 2226 (quoting Police Dep’t of Chicago v. Mosley, 408

U.S. 92, 95 (1972)). Content-based laws are presumptively unconstitutional and may be justified

only if the government proves that they are narrowly tailored to serve compelling state interests.

Reed at 2226 (citing R.A.V. v. St. Paul, 505 U.S. 377, 395 (1992)). (Emphasis added.)

How to determine if a law is content-based

Government regulation of speech is content based if a law applies to particular speech

because of the topic discussed or the idea or message expressed. Reed v. Town of Gilbert at 2227.

Otherwise stated, content-based laws target speech based on the communicative content of the

speech itself. Reed at 2226 (see Content Discrimination and the First Amendment., 139 U. Pa. L.

Rev. 615 explaining “Communicative impact…involves the function of the speech act as

communication – its transmission of a message to the mind of a listener – rather than the

function of the speech act as a physical event in the world. For example, the communicative

impact of a sound truck announcing “The Vice President is an idiot” is the outrage, or

amusement, of the recipients of the message; a non-communicative impact might be the

increased noise on the street. All expression takes place through some physical medium,

34
therefore all speech has both communicative and non-communicative effects. As a general rule,

the communicative effects of a given speech act will depend upon the content of the message

communicated, while the non-communicative effects will usually be independent of the

message.”).

Applying the reasoning above to the case at hand, it is clear that the Harassing

Communications Statute targets the communicative content of speech itself. The Harassing

Communications Statute is designed to regulate the speech act as communication (i.e., the

Statute is designed to regulate “the transmission of a message to the mind of a listener,”) as

opposed to the function of the speech act as a physical event in the world (i.e., the Statute is not

designed to regulate the physical act of opening a laptop, using one’s fingers to enter keystrokes

on a keyboard, or using one’s eyes to read a message, etc.).

The example used above is helpful in clarifying this idea:

• Communicative Impact (i.e., “content) - the communicative impact of a sound truck

announcing “The Vice President is an idiot” is the outrage, or amusement of the

recipients of the message; similarly, the communicative impact of the messages at issue

in this case are the feelings of “abuse,” “annoyance,” “threat,” etc. felt by the recipients

of the message.

• Non-Communicative Impact (i.e., not content related) – the non-communicative impact

of a sound truck announcing “The Vice President is an idiot” might be the increased noise

on the street; similarly, the non-communicative impact of the speech at issue in this case

would include, the sound of keystrokes on a key board, the increased decibel level in a

space due to the sound of keystrokes, etc.

35
 Two types of content-based laws: (1) Laws that are facially content-based; and (2) Laws
that are facially content-neutral but “cannot be justified without reference to the content of
the regulated speech” or that “were adopted by the government because of disagreement
with the message the speech conveys”

(1) Laws that are facially content-based

This common sense meaning of the phrase “content-based” requires a court to consider

whether a regulation of speech “on its face” draws distinctions based on the message the speaker

conveys. Reed at 2227. Some facial distinctions based on a message are obvious, defining

regulated speech by particular subject matter, and others are more subtle, defining regulated

speech by its function or purpose. Id. Both distinctions are drawn based on the message a speaker

conveys, and, therefore, are subject to strict scrutiny. Id.

In Reed v. Town of Gilbert, the Supreme Court struck down a municipal sign ordinance

promulgated by the town of Gilbert, Arizona which, by its terms, conveyed more stringent

restrictions on certain types of signs than it did on other types of signs. For example, the town’s

sign code defined “Temporary Directional Signs” on the basis of whether a sign conveyed the

message of directing the general public to church or to some other “qualifying event;” however,

the ordinance defined “Political Signs” on the basis of whether a sign’s message was “designed

to influence the outcome of an election;” additionally, the ordinance defined “Ideological Signs”

on the basis of whether the sign “communicates a message or ideas” that do not fit within the

ordinance’s other categories. Reed at 2227. Most importantly however, in addition to

36
distinguishing between the different categories of signage, the ordinance also subjected each of

these separate sign categories to different restrictions vis-à-vis their category type. Id. (Emphasis

added.) Finding that the ordinance was a facial content-based regulation of speech the Court

explained “The restrictions in the [ordinance] that apply to any given sign thus depend entirely

on the communicative content of the sign. If a sign informs its reader of the time and place a

book club will discuss John Locke’s Two Treatises of Government, that sign will be treated

differently from a sign expressing the view that one should vote for one of Locke’s followers in

an upcoming election, and both signs will be treated differently from a sign expressing an

ideological view rooted in Locke’s theory of government. More to the point, the Church’s signs

inviting people to attend its worship services are treated differently from signs conveying other

types of ideas. On its face, the [ordinance] is a content-based regulation of speech.” Id.

After establishing that the ordinance at issue was a content-based regulation and thus

subject to strict scrutiny review, the Reed Court thereafter analyzed whether the ordinance

satisfied the exacting demands of strict scrutiny, explaining “Because the Town’s [ordinance]

imposes content-based restrictions on speech…it is the Town’s burden to demonstrate that the

[ordinance’s] differentiation between temporary directional signs and other types of signs, such

as political signs and ideological signs, furthers a compelling governmental interest and is

narrowly tailored to that end.” Reed 2231. Holding that the alleged interests supported by the

ordinance ((1) preserving the town’s aesthetic appeal and (2) traffic safety), as alleged by the

government, failed to satisfy the strict scrutiny standard, the Court explained “Assuming for the

sake of argument that [the two interests alleged by the government] are compelling governmental

interests, the [ordinance’s] distinctions fail as hopelessly underinclusive…Starting with the

37
preservation of aesthetics, temporary directional signs are no greater an eyesore than ideological

or political [signs]. Yet the [ordinance] allows unlimited proliferation of larger ideological signs

while strictly limiting the number, size and duration of smaller directional ones. The town cannot

claim that placing strict limits on temporary directional signs is necessary to beautify the town

while at the same time allowing unlimited numbers of other types of signs that create the same

problem. The town similarly has not shown that limiting temporary directional signs is necessary

to eliminate threats to traffic safety, but that limiting other types of signs is not. The town has

offered no reason to believe that directional signs pose a greater threat to safety than do

ideological or political signs. If anything, a sharply worded ideological sign seems more likely to

distract a driver than a sign directing the public to a nearby church meeting.” Reed at 2231-32.

(Emphasis added.)

In the case at hand, the Harassing Communications Statute is content-based on its face

because it (1) regulates speech based on the message of the speech (e.g., the Statute prohibits

speech about subjects which could be construed as “abusing,” “annoying,” etc.), and (2) the

Statute regulates speech based on the speech’s function and purpose (e.g., the Statute prohibits

speech made “…for the purpose of abusing, annoying, threatening,” etc.). (Emphasis added.)

Because the Harassing Communications Statute regulates speech based on the message of the

speech and based on the speech’s function and purpose, the Harassing Communications Statute is

content-based and therefore subject to strict scrutiny (see Reed at 2227 holding “Some facial

distinctions based on a message are obvious, defining regulated speech by particular subject

matter, and others are more subtle, defining regulated speech by its function or purpose. Both

38
distinctions are drawn based on the message a speaker conveys, and, therefore, are subject to

strict scrutiny.”).

(2) Laws that are facially content-neutral but that “cannot be justified without
reference to the content of the regulated speech” or that “were adopted by the
government because of disagreement with the message the speech conveys”

Supreme Court precedent has also recognized a separate and additional category of laws

that, though facially content neutral, will be considered content-based regulations of speech

when those laws are: (1) laws that cannot be “justified without reference to the content of the

regulated speech,” and (2) laws that were adopted by the government “because of disagreement

with the message that the speech conveys.” Reed at 2227 (quoting Ward v. Rock Against Racism,

491 U.S. 781, 791 (1989)). (internal quotation marks omitted). Both of these types of laws,

similar to those laws that are content based on their face, must satisfy strict scrutiny review. Id.

(see Ward v. Rock Against Racism, wherein the Court explained “The principle inquiry in

determining content neutrality in speech cases generally…is whether the government has

adopted a regulation of speech because of disagreement with the message it conveys. The

government’s purpose is the controlling consideration.” Ward at 791 (citing Clark v. Community

for Creative Non-Violence, 468 U.S. 288, 295 (1984))).

In the case at hand, the Harassing Communications Statute should also be considered a

content-based restriction on speech because (1) the Statute cannot be justified without reference

to the content of the regulated speech (e.g., the Harassing Communications Statute prohibits

communications that could be construed as “abusive,” “annoying,” “threatening,” etc., but, the

only way to determine if the communication(s) at issue under the Statute constitute “abusive,” or

“annoying,” etc. communication is by referencing the specific content of that communication);

39
(2) the Harassing Communications Statute was adopted by the government because of

disagreement with the message the speech conveys (e.g., the government disagrees with

electronic communications which contain messages that could be considered “abusive,”

“annoying,” etc.).

The United States Supreme Court has clearly established that: (1) laws restricting the

freedom of speech which are facially content-based will be subject to strict scrutiny review (see

Reed v. Town of Gilbert above), and (2) laws restricting the freedom of speech which are facially

content-neutral but that “cannot be justified without reference to the content of the regulated

speech” or that “were adopted by the government because of disagreement with the message the

speech conveys” will also be subject to strict scrutiny review (see Renton v. Playtime Theatres,

Inc. and Boos v. Barry below). (Emphasis added.)

“Content-based” vs. “Content-neutral” Laws –

Boos v. Barry and Renton v. Playtime Theatres, Inc.

Renton v. Playtime Theatres, Inc. – a “content-neutral” law

At issue in Renton was a regulation (zoning ordinance) promulgated by the city of Renton,

Washington which essentially prohibited adult movie theaters from locating within 1,000 feet of

residential properties, churches, parks, or schools. Renton v. Playtime Theatres, Inc., 475 U.S. 41,

43 (1986). The Supreme Court, holding that the regulation at issue in Renton was content-

neutral, explained “At first glance, the Renton ordinance…does not appear to fit neatly into

either the “content-based” or the “content-neutral” category. To be sure, the ordinance treats

theaters that specialize in adult films differently from other kinds of theaters. Nevertheless…the

Renton ordinance is aimed not at the content of the films shown at adult motion picture theaters,

40
but rather at the secondary effects of such theaters on the surrounding community.” Renton at

47. (internal quotations omitted.) (Emphasis added.) Thus, because the regulation at issue in

Renton was not specifically aimed at the content of the speech itself 9, the Renton Court held that

the regulation was content-neutral and as a result the Court found that the applicable standard of

review was not strict scrutiny but instead whether the regulation at issue was “designed to serve a

substantial government interest [while allowing] for reasonable alternative avenues of

communication.” Renton at 50.

Boos v. Barry – a “content-based” law

Two years after Renton, in Boos v. Barry, 485 U.S. 312 (1988), the Supreme Court of the

United States struck down a provision of a District of Columbia code (the “Code”) which

prohibited the display of certain signs outside of foreign embassies in Washington, D.C. The

Court held that the Code was a content-based regulation of speech and that the regulation did not

satisfy the demands of strict scrutiny because: (1) the government’s purported interest (i.e.,

protecting the dignity of foreign diplomatic personnel) was not necessarily “compelling,” and (2)

to the extent that such an interest could be considered “compelling,” prohibiting the display of

certain signs outside of foreign embassies was nonetheless not narrowly tailored to achieve that

interest.

The Code10 at issue in Boos provided in relevant part:

9 I.e., the regulation was not per se prohibitory or suppressive of “unpopular views” (i.e., adult films), but rather was
aimed at the secondary effects of such speech (e.g., the effects that the speech (i.e., the presence of adult movie
theaters)) could conceivably have on a city’s crime rates, retail trade, property values, the ability of a city to
generally protect and preserve the quality of its neighborhoods, commercial districts, and the quality of urban life
generally…”). Renton at 48.

10 See District of Columbia Code §22-1115 (§22-1115 in 1938, S. J. Res. 191, ch. 29, §1m 52 Stat. 30 (1938))

41
 “It shall be unlawful to display any flag, banner, placard, or device designed or
adapted to intimidate, coerce, or bring into public odium any foreign government,
party, or organization, or any officer or officers thereof or to bring into public
disrepute political, social, or economic acts, views, or purposes of any foreign
government, party or organization…”

In ruling that the Code at issue in Boos was content-based, the Court first discussed the

importance of the First Amendment protections at issue in the case, explaining “[The Code]

operates at the core of the First Amendment by prohibiting petitioners from engaging in

classically political speech. We have recognized that the First Amendment reflects a “profound

national commitment” to the principle that “debate on public issues should be uninhibited, robust

and wide-open,” and have consistently commented on the central importance of protecting

speech on public issues.” Boos at 343 (quoting New York Times Co. v. Sullivan, 376 U.S. 254,

270 (1962); citing Connick v. Myers, 461 U.S. 145 (1983) et al.). After discussing the relevant

First Amendment implications at issue in the case, the Boos Court thereafter discussed how the

Code specifically regulated speech based upon the content of said speech, explaining “Whether

individuals may picket in front of a foreign embassy depends entirely upon whether their picket

signs are critical of the foreign government or not. One category of speech has been completely

prohibited within 500 feet of embassies. Other categories of speech, however, such as favorable

speech about a foreign government or speech concerning a labor dispute with a foreign

government, are permitted…” Boos at 319-320. (Emphasis added.)

Thereafter, the Boos Court analogized the regulation at issue in Boos (which the Court

held was content based) with the regulation at issue in Renton (which the Court held was not

content based (i.e., was content-neutral)), explaining “Drawing on prior decisions, we described

content-neutral speech restrictions as those that are justified without reference to the content of

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the regulated speech. The regulation at issue in Renton described prohibited speech by reference

to the type of movie theatre involved, treating theatres that specialize in adult films differently

from other kinds of theaters. But while the regulation in Renton applied only to a particular

category of speech, its justification had nothing to do with that speech. The content of the films

being shown inside the theatres was irrelevant and was not the target of the regulation. Instead,

the ordinance was aimed at the secondary effects of such theaters in the surrounding community,

effects that are almost unique to theatres featuring sexually explicit films, i.e., the prevention of

crime, maintenance of property values, and protection of residential neighborhoods. In short, the

ordinance in Renton did not aim at the suppression of free expression.” Boos at 320. The Boos

Court then discussed the difference between those regulations that focus on the direct impact that

speech has on its audience (as opposed to a regulation which focuses on tangential secondary

effects such as crime, property values, quality of life, etc.) explaining “Listeners’ reactions to

speech are not the type of “secondary effects” we referred to in Renton. To take an example

factually close to Renton, if the ordinance there was justified by the city’s desire to prevent the

psychological damage it felt was associated with viewing adult movies, then analysis of the

measure as a content-based statute would have been appropriate. The hypothetical regulation

targets the direct impact of a particular category of speech, not a secondary feature that happens

to be associated with that type of speech.” Boos at 321.

In the case at hand, similar to Boos, the Harassing Communications Statute distinguishes

and regulates speech based specifically upon the reaction that such speech has on its audience

(i.e., whether that audience will feel “abused, annoyed, threatened, etc.”). As the Court explained

in Boos, “To take an example…if the [ordinance at issue] was justified by the [government’s]

43
desire to prevent the psychological damage it felt was associated with viewing [the speech], then

analysis of the [statute] as a content-based statute would have been appropriate.” Boos at 321.

(Emphasis added.) Here, the Harassing Communication’s Statute is justified by the state’s desire

to prevent the “psychological damage” that it feels may be “associated with viewing the speech,”

(i.e., the state is justifying the Statute based on the state’s desire to prevent individuals from

feeling “abused, annoyed, threatened, etc.”). Because the Harassing Communications Statute is

justified on the basis of preventing individuals from feeling “abused, annoyed, threatened, etc.”

and because the Statute clearly distinguishes between, and imposes punishment based upon, the

particular content embodied with the communication at issue, the Statute is content-based

regulation that is subject to strict scrutiny review.

The Harassing Communications Statute Fails to Satisfy Strict Scrutiny Review

Content-based restrictions on protected speech are subject to strict scrutiny review which

requires the state to prove that the statute in question serves a compelling government interest,

and that the statute is narrowly tailored to effectuate that interest. State v. Bishop 876.

Furthermore, “[c]ontent based laws are presumptively unconstitutional and may be justified only

if the government proves that they are narrowly tailored to serve a compelling state interest.”

Reed v. Town of Gilbert at 2226. (Emphasis added.) In the case at hand, the Harassing

Communications Statute fails to satisfy strict scrutiny review because (1) the Statute does not

serve a compelling government interest, and (2) the Statute is not narrowly defined to effectuate

the government’s interest. Both of these arguments are explained in greater detail below.

(1) The Harassing Communications Statute does not serve a compelling government
interest

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 In State v. Bishop (see above), the North Carolina Supreme Court struck down a state

“cyberbullying” statute 11 as an impermissible content-based regulation on protected speech.

Applying the strict scrutiny standard to the “cyberbullying” statute at issue there, the Bishop

Court held that the state’s interest in that case (protecting children from online bullying) was a

compelling government interest. (Emphasis added.) In reaching their decision, the Bishop Court

noted that the “General Assembly has a compelling interest in protecting children from physical

and psychological harm,” (Bishop at 877) (Emphasis added.), and the Court took care to explain

the unique legal protections afford specifically to minors, holding “We also note that the special

status of minors is a subject for which the Supreme Court of the United States has shown a

particular solicitude. That Court’s long-standing recognition that youth is more than a

chronological fact, has led it, on one hand, to recognize a compelling interest in the protection of

minors, and, on the other, to prohibit the imposition of the most serious criminal punishments for

offenses committed before the age of eighteen.” Bishop at 877 (citing Eddings v. Oklahoma, 455

U.S. 104, 115 (1982); Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 126

(1989); also citing Roper v. Simmons, 543 U.S. 551, 575 (2005)). (Emphasis added.) (internal

quotation marks omitted).

In the case at hand, unlike Bishop, the Harassing Communications Statute is not intended to

protect the “psychological well-being of minors.” Instead, the Harassing Communications

Statute is designed to protect “everyone,” generally, from receiving electronic communications

that could be considered “abusing,” “annoying,” “threatening,” “terrifying,” “harassing,” or

“embarrassing.” Unlike the cyberbullying statute at issue in Bishop, the Harassing

11 See N.C. Gen. Stat. § 14-458.1(a)(1)(d) (2015)

45
Communications Statute is not limited in its scope and intent to protecting the psychological

well-being of minors. Thus, the compelling interest in “protecting children from physical and

psychological harm” that was present in Bishop is utterly lacking in this case. Additionally, the

state does not have a compelling interest in protecting adults from feelings of “abuse,”

“annoyance,” “threat,” “terror,” “harassment,” or “embarrassment” that may result from that

adult’s consensual use of the internet and the electronic communication occurring thereon.

Conversation that occurs online is often provocative, challenging, insulting, rhetorical (and a

litany of other adjectives). Perhaps the fact that such conversations occur online and not in

person is one reason why electronic communications are so rich and varied in their composition

(i.e., individuals might feel more comfortable expressing their opinions from the safety and

privacy of their own home). Except in the rarest of circumstances, communication that occurs

online, whether insulting or insightful, remains online and does not have the risk of “inherently

inciting violent behavior.” Absent a direct threat12, the state does not have a compelling interest

in ensuring that an individual is not personally offended due to an electronic communication he

or she viewed online.

(2) The Harassing Communications Statute is not narrowly defined to effectuate a

compelling government interest

After determining that the state did have a compelling interest in protecting minors from

online bullying, the North Carolina Supreme Court in Bishop analyzed the “cyberbullying”

statute in terms of whether the language embodied in the statute was “the least restrictive means

12 See North Carolina’s “Communicating threats” statute N.C.G.S.A. § 14-277.1 which provides “A person is guilty
of [communicating threats] if without lawful authority: (1) He willfully threatens to physically injure the person or
that person’s child, sibling, spouse, or dependent or willfully threatens to damage the property of another; (2) The
threat is communicated to the other person, orally, in writing, or by any other means; (3) The threat is made in a
manner and under circumstances which would cause a reasonable person to believe that the threat is likely to be
carried out; and (4) The person threatened believes that the threat will be carried out.”

46
of advancing the State’s compelling interest in protecting minors from [the potential harms of

online bullying].” Bishop at 820. Holding that the cyberbullying statute was not the least

restrictive means for advancing the state’s interest, the Bishop Court explained:

“At the outset, it is apparent that the statute contains no requirement that the
subject of an online posting suffer injury as a result, or even that he or she become
aware of such a posting. In addition, as to both the motive of the poster and the
content of the posting, the statute sweeps far beyond the State’s legitimate interest
in protecting the psychological health of minors. Regarding motive, the statute
prohibits anyone from posting forbidden content with the intent to intimidate or
torment a minor. However, neither intimidate nor torment is defined in the statute,
and the State itself contends that we should define torment broadly to reference
conduct intended to annoy, pester, or harass. The protection of minors’ mental
well-being may be a compelling governmental interest, but it is hardly clear that
teenagers require protection via the criminal law from online annoyance. The
description of the proscribed subject matter is similarly expansive. The statute
criminalizes posting online private, personal, or sexual information pertaining to a
minor. Again, these terms are not defined by the statute…Were we to adopt the
State’s position, it could be unlawful to post on the Internet any information
relating to a particular minor. Such an interpretation would essentially criminalize
posting any information about any specific minor if done with the requisite
intent.” Bishop at 878-79. (Emphasis added.)

In the case at hand, similar to Bishop, the Harassing Communications Statute is not

narrowly defined to effectuate a compelling government interest. First, as in Bishop, the

Harassing Communications Statute contains no requirement that the subject of an electronic

communication suffer injury as a result of receiving that communication, or even that he or she

become aware of such a posting. 13Second, as it relates to motive, the Harassing Communications

Statute similarly fails to define what it means for an individual to “electronically communicate to

another repeatedly…for the purpose of abusing, annoying, threatening, terrifying, harassing, or

embarrassing any person.” (Emphasis added.) Here, as in Bishop, “it is hardly clear that [adults]

13In fact, the Harassing Communications Statute goes even further and specifically states that a person can be
convicted under the statute “…whether or not conversation ensues…” see N.C.G.S.A. § 14-196.3(b)(2).

47
require protection via the criminal law from online annoyance.” Because the Harassing

Communications Statute contains no requirement that the subject (recipient) of an electronic

communication suffer injury as a result of such communication or that he or she even become

aware of such a posting, and further because the Statute fails to define with the requisite

specificity the motive necessary to subject an individual to prosecution under the statute, the

Harassing Communications Statute is not narrowly defined to effectuate a compelling

government interest and therefore fails to satisfy strict scrutiny.

IV. Pursuant to N.C.G.S.A. §14-196.3(e), any and all communications, electronic or

otherwise, at issue in this case, are considered “peaceable, nonviolent, or
nonthreatening activity intended to express political views or to provide lawful
information to others” and as a result N.C.G.S.A. §14-196.3 is not applicable in this
case, and furthermore, any and all communications at issue in this case are
considered “constitutionally protected activity, including speech, protest, or
assembly,” and therefore N.C.G.S.A. §14-196.3 “shall not be construed to impair”
such communication.

N.C.G.S.A. §14-196.3(e) provides:

“This section does not apply to any peaceable, nonviolent, or nonthreatening

activity intended to express political views or to provide lawful information to
others. This section shall not be construed to impair any constitutionally protected
activity, including speech, protest, or assembly.”

For the reasons previously stated in this Memorandum of Law, any and all communications,

electronic or otherwise, at issue in this case are considered “peaceable, nonviolent, or

nonthreatening activity intended to express political views or to provide lawful information to

others” and therefore, per N.C.G.S.A. §14-196.3(e), N.C.G.S.A. §14-196.3 is not applicable to the

case at hand. Additionally, any and all communications at issue in this case are considered

“constitutionally protected activity, including speech, protest, or assembly,” and therefore

N.C.G.S.A. §14-196.3 “shall not be construed to impair” such communication.

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 Conclusion

For the reasons stated in this Memorandum of Law, N.C.G.S.A. §14-196.3(b)(2), as

drafted, is unconstitutional both on its face and as applied to Mr. Fuller because (1) the Statute is

void for vagueness (see above), (2) the Statute is unconstitutionally overbroad (see above), and

(3) the Statute is an impermissible content-based regulation of speech that fails to satisfy the

demands of strict scrutiny (see above). Additionally, per N.C.G.S.A. §14-196.3(e), N.C.G.S.A.

§14-196.3(b)(2) is inapplicable to the case at hand because any and all communications,

electronic or otherwise, at issue in this case are considered “peaceable, nonviolent, or

nonthreatening activity intended to express political views or to provide lawful information to

others” and therefore, per N.C.G.S.A. §14-196.3(e), N.C.G.S.A. §14-196.3 is not applicable.

Furthermore, any and all communications at issue in this case are considered “constitutionally

protected activity, including speech, protest, or assembly,” and therefore N.C.G.S.A. §14-196.3

“shall not be construed to impair” such communication. For these reasons, the charge of

Harassing Communications, as alleged against Mr. Fuller, should be dismissed.

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