by Mitch Kokai
Senior Political Analyst, John Locke Foundation
The N.C. Court of Appeals has thrown out a death threat case against a Macon County man. He had been convicted in 2018 of using a Facebook post to threaten the local district attorney.
In opinions taking up 123 pages, appellate judges explained why David Taylor’s social media comments did not constitute a “true threat.” First Amendment case law requires such a “true threat” to uphold a conviction on charges of “threatening to kill a court officer,” namely Macon County D.A. Ashley Welch.
Chief Judge Linda McGee summarizes key issues the court addressed for the first time:
… [W]e have held the following concerning application of the First Amendment to anti-threat statutes in North Carolina: (1) The First Amendment requires that “true threat” must be included as an element of any prosecution based upon an alleged threat. The “true threat”element includes a proper definition of “true threat”and application of the general intent standard set forth above. (2) Whether considered part of the definition of “true threat” or a separate element, the First Amendment requires the State to prove beyond a reasonable doubt that a defendant specifically intended that his communication would reach the intended target, and that the defendant also intended his target would believe the communication to be a real threat and feel threatened thereby. (3) It is the State’s burden to prove a defendant communicated a “true threat” based on the language and nature of the alleged threat itself and all the relevant attendant circumstances, i.e., context. If challenged, it is also the State’s duty to prove that an anti-threat statute can be constitutionally applied, based upon the particular facts of each case.
Judge Richard Dietz agreed with the result of the case but added his own concurrence:
The only portion of Taylor’s rambling series of Facebook posts that plausibly could be considered a threat against the district attorney is his statement that “If our head prosecutor won’t do anything, then death to her as well.” Even in isolation, this statement is not necessarily a “true threat.” In modern English language, calling for “death to” something quite often is nota threat to kill that thing — it often expresses a desire for the downfall or ruin of that thing. We know this not only for English usage generally, but from Taylor’s own usage in this same series of Facebook posts. Shortly before his “death to her as well” comment, Taylor stated, “Death to our so called judicial system since it only works for those that are guilty!” …
… The advent of social media has given us a window into our fellow citizens’ views that we did not have before. Drunken political tirades like Taylor’s once were confined to living rooms or pool halls. They now can be seen by everyone, everywhere. The First Amendment protects them either way. Taylor’s rant was not a true threat — it was “a kind of very crude offensive method of stating a political opposition to” the district attorney. His speech is protected by the First Amendment and cannot be criminalized.