              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA18-273

                                Filed: 19 March 2019

Mecklenburg County, Nos. 16 CRS 10028-30, 34

STATE OF NORTH CAROLINA

             v.

BRADY LORENZO SHACKELFORD


      Appeal by defendant from judgment entered 18 August 2017 by Judge Yvonne

Mims Evans in Mecklenburg County Superior Court. Heard in the Court of Appeals

18 October 2018.


      Attorney General Joshua H. Stein, by Solicitor General Matthew W. Sawchak
      and Assistant Solicitor General Kenzie M. Rakes, for the State.

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender James R.
      Grant, for defendant-appellant.


      DAVIS, Judge.


      In this appeal, we address the question of whether a defendant’s criminal

prosecution for violations of North Carolina’s stalking statute infringed upon his

constitutional right to free speech. Brady Lorenzo Shackelford (“Defendant”) was

convicted of four counts of felony stalking based primarily upon the content of posts

made by him on his Google Plus account. Because we conclude that the application

of the statute to Defendant’s posts amounts to a violation of his right to free speech

under both the First Amendment to the United States Constitution and Article 1,

Section 14 of the North Carolina Constitution, we vacate his convictions.
                                 STATE V. SHACKELFORD

                                   Murphy, J., concurring



                       Factual and Procedural Background

       The State presented evidence at trial tending to establish the following facts:

Defendant met “Mary”1 on 3 April 2015 at a church in Charlotte, North Carolina prior

to the start of a Good Friday worship service. Mary was employed in the church’s

communications department. The two of them were seated at the same table and

briefly made small talk in a group setting before separating at the beginning of the

service. Upon leaving church that day, Mary did not give any further thought to her

encounter with Defendant.

       On 22 April 2015, Mary received an email from Defendant on her work email

account that referenced their 3 April meeting and asked “for help with a company

communications plan.” Mary replied to his email later that day, informing him that

she would be happy to assist him and suggesting a time for them to meet. Defendant

responded shortly thereafter, agreeing to meet Mary on the date she had suggested.

       Later that same night, Defendant sent another email to Mary “to give [her]

some information about [his] business[.]” In the email, Defendant detailed his plan

to create a new business based in the British Virgin Islands. In the final paragraph

of his email, Defendant wrote that he would pay Mary “100K out of the convertible

note proceeds AND take [her] out to dinner at any restaurant in Charlotte.”




       1A pseudonym is used throughout this opinion to protect the identity of the subject of
Defendant’s posts.

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      Defendant’s email “set off a lot of red flags” for Mary. On 27 April 2015 she

emailed Defendant to “cancel[ ] the meeting, thinking that his intentions were not

really professional, and informed [her] boss” about the exchange. Later that day and

again on 5 May 2015, Defendant emailed Mary in an attempt to reschedule their

meeting. On 5 May 2015, Mary replied with links to online resources and wrote: “I

won’t be able to meet. If you have further questions, you can contact my boss[.]”

      On 19 May 2015, Defendant mailed a five-page handwritten letter to Mary’s

work address. At trial, Mary testified as follows with regard to this letter:

             The gist of it was that when [Defendant] first saw me at
             the Good Friday service he thought he had found his soul
             mate, and that the feelings he felt were so intense he
             couldn’t talk to me. And then he goes on to say that he used
             the communications plan to talk to me, to ask me out,
             rather than for professional reasons[.]

      Defendant ended the letter by writing that he was “highly attracted” to Mary

and asking her to go on a date with him. The following day, Mary gave the letter to

her work supervisors and asked them to intervene on her behalf, and they agreed to

do so. She did not respond to Defendant’s letter.

      On 26 May 2015, Defendant sent Mary a second handwritten letter, which was

seven pages long and mailed to her home address. At trial, Mary provided a summary

of the second letter:

             He starts by apologizing for sending this to me without me
             giving him my address. He says he found it on a website.
             And he also says that he would not harass or stalk me, and


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             that if I felt uncomfortable to notify him and he would cease
             communication. Then he goes on to talk about some of his
             personal history, and the last line says that I need to go on
             a date with him or tell him to leave me alone.

Mary showed Defendant’s letter to her supervisors, who once again told her that they

would handle the situation.

      On 9 June 2015, Reverend Bill Roth, the Minister of Pastoral Care at the

church, spoke to Defendant over the phone about his communications with Mary.

During this phone call, Reverend Roth told Defendant “to stop making any contact

[with Mary] and [that] there could be legal actions if he did, and that the contacts

were unwanted.” Following this conversation, Defendant did not send Mary any

further emails or letters.

      In June of 2015, Mary logged into an account she had created on the social

media service Google Plus.     Upon doing so, she discovered that Defendant had

“followed” her account sometime in late April of 2015 and had made four separate

posts on his own Google Plus account in early June that referred to her by name. The

posts on Defendant’s Google Plus account were not specifically directed to Mary but

were shared publicly on his account where any user of the service could read them.

      The first post, dated 2 June 2015, stated that “God chose [Mary]” to be

Defendant’s “soul mate.” In the other three posts, Defendant wrote, among other

things, that he “freely chose [Mary] as [his] wife” and wanted God to “please make

[Mary]” his wife. After viewing these posts, Mary immediately blocked Defendant’s


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account.   Shortly thereafter, she deleted her own Google Plus account.      Mary

continued, however, to monitor Defendant’s publicly shared posts by checking his

Google Plus page “[a]t least once a week.”

      Following his 9 June 2015 phone call with Reverend Roth, Defendant

continued to post about Mary. None of his posts after that date referenced Mary by

name, although one used her initials and another referred to her by a shortened

version of her first name.

      On 19 June 2015, Defendant wrote the following post on his Google Plus

account:

             There is a woman from my church that is turning me bat
             crazy. She is the first thing I see when I wake up in the
             morning and the last thing I see before I lay down at night.
             I strongly believe that she is an angel in disguise, that she
             is the girl that God sent down from heaven for me. I
             strongly believe that she is my soul mate, that she is my
             destiny. My heart aches for her.

      He posted as follows on 28 June 2015:

             I’m feeling depressed. There’s a woman at my church that
             I want really, really bad, but she doesn’t want me. I’ve
             prayed to God asking him to relieve this pain in my heart
             by allowing me to view just a small glimpse of her angelic
             face while in church, but God won’t even give me that. 

      On 19 July 2015, Defendant wrote the following post:

             I’ve changed my      relationship status because too many
             single & looking     women are adding me to their circles.
             There is only one    woman that I want, and her initials are
             [Mary’s initials].   Even though we aren’t dating yet, you


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              might as well mark me down as being in a relationship
              because I am not interested in other women.

      He also posted a message on 2 August 2015 stating that “I believe the woman

who introduced me to my soul mate at my church’s Good Friday service is jealous and

envious of my love for my soul mate and would rather me be with her instead of my

soul mate.”

      On 13 August 2015, a box of cupcakes was delivered to Mary’s office at her

work. Attached to the box was a typed, unsigned note that read: “[Mary], I never

properly thanked you for the help you gave me regarding my company’s

communication plan, so, with these cupcakes, please accept my thanks.”

      Upon receiving the cupcakes, Mary filed a police report with Detective Stephen

Todd, an off-duty Charlotte-Mecklenburg Police Department officer who worked at

the church, because she “felt like she was being stalked.” Based upon Mary’s report,

Detective Todd applied for an arrest warrant against Defendant on a charge of

misdemeanor stalking. Defendant was arrested on 14 August 2015 and subsequently

released on bail.

      The same day that he was arrested, Defendant posted the following message

on his Google Plus account:

              A woman I was interested in really, really bad has let it be
              known in no uncertain terms that she is not interested in
              me. Therefore, with a much heavy heart, I announce that
              I am officially single. :(



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      The pain hurts because I dreamt about this woman and
      believed that she was my soul mate. How could God be so
      wrong???

On 16 August 2015, Defendant posted another message:

      I study all religions, and I have been searching them all for
      the past day trying to find something, some quote, that
      would console me in my time of heartbreak. I just read
      something by Buddha that, instead of consoling me,
      actually made me angry. He said, “In the end, only three
      things matter: how much you loved, how gently you lived,
      and how gracefully you let go of things not meant for you.”

      My question for Buddha is this: How do you know when
      something is not meant for you if you give up at the first
      sign of difficulty? Sometimes, God places difficulties in our
      lives because he wants us to be persistent in the face of
      those difficulties. For example, if a boy really wanted a
      girl, and the girl turned him down the first time he asked
      her out on a date, should he take Buddha’s advice and
      gracefully let go of something not meant for him or should
      he continue courting the girl with the hope that she will
      one day say yes? If every guy let go of the girl who turned
      him down the first time, then there would be lots of
      marriages that never took place because he wasn’t
      persistent. Had he been persistent, his persistence would
      have won her over by proving to her just how much he loved
      her. . . .

Later that same day, Defendant posted as follows on his Google Plus account:

      I have courted three Venus in Scorpios over the years, so I
      decided earlier this summer to learn everything that I
      could about Scorpios and Venus in Scorpios. I was reading
      this website about Scorpios this evening when I read a
      sentence that made me break out laughing so hard from
      the truth that I nearly died. The author was talking about
      their obsessiveness and stated, “Don’t run away (you’ll only
      be stalked).” I LMAO because I saw the behavior in all


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             three women. Moreover, the Scorpio Ascendant in me
             completely understood where they were coming from.

      On 21 August 2015, Mary filed a petition for a no-contact order against

Defendant in Mecklenburg County District Court.           On 1 September 2015, the

Honorable Becky Tin issued an order prohibiting Defendant from contacting Mary or

“posting any information about [her] on social media.”

      Later that month, Defendant authored the following post on his Google Plus

account on the same date that Mary attended a Carolina Panthers football game:

“Who is your favorite Carolina Panthers cheerleader? Mine is . . . I’m not telling,

least [sic] I upset my Venus in Scorpio future wife. . . .” On 28 September 2015,

Defendant posted: “OK, I’ve teased my Venus in Scorpio long enough. My favorite

Carolina Panthers cheerleader is Emily. If she shows up missing, [shortened form of

Mary’s name], I’ll know who to blame.”

      Several weeks later, following a heavy rainstorm in South Carolina – where

Mary’s family lives – Defendant posted: “South Carolina got pummeled with rain. I

pray my future wife’s family is OK.”      On 4 October 2015, Defendant posed the

following question on his account: “If you really loved someone and wanted to be with

them forever, would you fly down to the Caribbean and secretly elope with them on a

deserted island?”

      In an undated Google Plus post that was introduced as evidence at his trial,

Defendant wrote, in relevant part, as follows:


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             I would love to learn more about the dynamic between me
             and my future wife, but I don’t know her personality type.
             I do know that she is either an INFJ or an INFP because of
             a pin on her Pinterest board. Unfortunately, her pin is
             confusing because she says that she is an INFP while the
             image she pinned is that of an INFJ. I guess I will just
             have to study both of them.

      On 24 November 2015, Defendant sent an email to a close friend of Mary’s.

The email began as follows:

             I know that you are best friends with [Mary]. In fact, I
             knew that you were best friends with Mary before you even
             added me to your circles on Google+. My question for you
             is this: You were present in the courtroom when [Mary]
             obtained a protective order against me, so why would you
             even add me to your circles if I am supposedly stalking
             [Mary]?

      Later in the email, Defendant wrote that Mary had a “moral responsibility to

tell the full truth as to why she really charged me when we show up in court” and

that the friend should “encourage [Mary] to tell the truth when we show up in court[.]”

      On Monday, 14 December 2015, Defendant posted the following on his Google

Plus account:

             I’m going to send a personal email on Friday using my
             corporate email account, which doesn’t have tracking
             software, instead of my Gmail account, which does have
             tracking software, because the final recipient knows that I
             have tracking software on my Gmail account, and I want
             her to share the email with as many people as possible
             without fear of me knowing who she is forwarding the
             email to.




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      Two days later, he wrote: “I am so eager to marry my future wife that I would

rather elope with her now than marry her in our church seven months from now.”

      On Friday, 18 December 2015, Defendant sent another email to Mary’s friend.

In this email, he detailed his plans to issue a $500 million note as part of a viral

marketing campaign that would ultimately result in him taking a polygraph test on

CNN to prove that he had “talked to God over 20 times and seen his face 5 times[.]”

According to Defendant, his televised polygraph test would provide Mary with an

opportunity to save face and “tell the judge that I am obviously a righteous man and

was in no way a threat towards her.” Three days after sending this email, Defendant

posted the following on his Google Plus account: “I just realized that I forgot my wife’s

birthday last week. I’m sorry, Babe[.]”

      Mary’s friend forwarded both of the emails she had received from Defendant

to Detective Todd. Based on these emails along with Defendant’s Google Plus posts,

Detective Todd obtained an arrest warrant against Defendant on 24 December 2015

for felony stalking. Defendant was subsequently indicted by a grand jury on eight

additional counts of felony stalking on 4 April 2016. On 4 August 2017, Defendant

filed a motion to dismiss all charges against him on the ground that the Google Plus

posts giving rise to his charges were protected under the First Amendment.

      Defendant’s jury trial began on 15 August 2017 in Mecklenburg County

Superior Court before the Honorable Yvonne Mims Evans. Prior to the beginning of



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trial, the court denied the State’s motion to amend the date on one of Defendant’s

indictments, and the State dismissed that charge. At the close of the State’s evidence,

the trial court granted Defendant’s motion to dismiss the four stalking charges

premised upon violations of the 1 September 2015 no-contact order. The court stated

that it was doing so based upon its concern that the language in the no-contact order

prohibiting Defendant from posting about Mary on social media “may be

unconstitutional.”

      On 18 August 2017, Defendant was convicted of each of the four remaining

stalking offenses that were submitted to the jury. All of these convictions were based

upon conduct that occurred after his 9 June 2015 phone call with Reverend Roth

during which he was directed to cease his attempts to communicate directly with

Mary. The trial court consolidated Defendant’s convictions in 16 CRS 10028 and 16

CRS 10029 and sentenced him to a term of 17 to 30 months imprisonment. The court

also imposed a consecutive sentence of 15 to 27 months imprisonment for his

conviction in 16 CRS 10030. With regard to Defendant’s conviction in 16 CRS 10034,

the court sentenced Defendant to a term of 15 to 27 months imprisonment, suspended

the sentence, and placed him on 36 months of supervised probation. Defendant gave

notice of appeal in open court.

                                        Analysis




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      On appeal, Defendant argues that the trial court erred by denying his motion

to dismiss the four stalking charges for which he was ultimately convicted. He

contends that because all of these charges were based — either in whole or in part —

upon the content of his Google Plus posts, he could not constitutionally be convicted

of stalking due to the resulting infringement of his right to free speech under the First

Amendment to the United States Constitution and Article 1, Section 14 of the North

Carolina Constitution. As such, he is asserting an as-applied challenge to North

Carolina’s stalking statute, N.C. Gen. Stat. § 14-277.3A.

I.   As-Applied Challenge to N.C. Gen. Stat. § 14-277.3A

      A. As-Applied Challenges Generally

      With regard to the distinction between facial and as-applied constitutional

challenges, this Court has stated the following:

             [T]here is a difference between a challenge to the facial
             validity of [a statute] as opposed to a challenge to the
             [statute] as applied to a specific party.        The basic
             distinction is that an as-applied challenge represents a
             plaintiff’s protest against how a statute was applied in the
             particular context in which plaintiff acted or proposed to
             act, while a facial challenge represents a plaintiff’s
             contention that a statute is incapable of constitutional
             application in any context. . . .      Only in as-applied
             challenges are facts surrounding the plaintiff’s particular
             circumstances relevant.




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Town of Beech Mountain v. Genesis Wildlife Sanctuary, Inc., 247 N.C. App. 444, 460,

786 S.E.2d 335, 347 (2016) (internal citations, quotation marks, and brackets

omitted), aff’d per curiam, 369 N.C. 722, 799 S.E.2d 611 (2017).

      Here, Defendant’s constitutional challenge is strictly an as-applied one. Thus,

this case does not require us to consider the facial validity of N.C. Gen. Stat. § 14-

277.3A.

      “The standard of review for alleged violations of constitutional rights is de

novo.” State v. Roberts, 237 N.C. App. 551, 556, 767 S.E.2d 543, 548 (2014) (citation

and quotation marks omitted), disc. review denied, 368 N.C. 258, 771 S.E.2d 324

(2015). Under the de novo standard, this Court “considers the matter anew and freely

substitutes its own judgment for that of the lower tribunal.” State v. Williams, 362

N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008) (citation and quotation marks omitted).

      B. Overview of N.C. Gen. Stat. § 14-277.3A

      N.C. Gen. Stat. § 14-277.3A provides, in pertinent part, as follows:

             (c) Offense. — A defendant is guilty of stalking if the
             defendant willfully on more than one occasion harasses
             another person without legal purpose or willfully engages
             in a course of conduct directed at a specific person without
             legal purpose and the defendant knows or should know
             that the harassment or the course of conduct would cause
             a reasonable person to do any of the following:

             ....

                (2) Suffer substantial emotional distress by placing that
                person in fear of death, bodily injury, or continued


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                   harassment.

N.C. Gen. Stat. § 14-277.3A (2017).

      “Course of conduct” is defined in the statute as “[t]wo or more acts, including,

but not limited to, acts in which the stalker directly, indirectly, or through third

parties, by any action, method, device, or means . . . communicates to or about a

person[.]”   Id.   N.C. Gen. Stat. § 14-277.3A defines “harassment” as “[k]nowing

conduct, including written or printed communication or transmission . . . and

electronic mail messages or other computerized or electronic transmissions directed

at a specific person that torments, terrorizes, or terrifies that person and that serves

no legitimate purpose.”     Id.   In this appeal, the State argues that Defendant’s

convictions were proper based on the theory that he engaged in an illegal “course of

conduct” directed at Mary as that phrase is statutorily defined.

      C. First Amendment Principles

      “The First Amendment, applicable to the States through the Fourteenth

Amendment, prohibits the enactment of laws abridging the freedom of speech.” Reed

v. Town of Gilbert, Ariz., __ U.S. __, __, 192 L. Ed. 2d 236, 245 (2015) (citation and

quotation marks omitted). Article 1, Section 14 of the North Carolina Constitution

provides that “[f]reedom of speech and of the press are two of the great bulwarks of

liberty and therefore shall never be restrained, but every person shall be held

responsible for their abuse.” N.C. Const. art. I, § 14. Our appellate courts have held



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that the free speech protections contained in the federal and North Carolina

constitutions are “parallel and has addressed them as if their protections were

equivalent.” State v. Petersilie, 334 N.C. 169, 184, 432 S.E.2d 832, 841 (1993) (citation

omitted).

      “Posting information on the Internet — whatever the subject matter — can

constitute speech as surely as stapling flyers to bulletin boards or distributing

pamphlets to passersby — activities long protected by the First Amendment.” State

v. Bishop, 368 N.C. 869, 873, 787 S.E.2d 814, 817 (2016) (citation omitted). Indeed,

“the protections of the First Amendment extend in full not just to the Internet, but to

all new media and forms of communication that progress might make available[.]”

Id. at 874, 787 S.E.2d at 818 (internal citation omitted).

      The United States Supreme Court has stated that “above all else, the First

Amendment means that government has no power to restrict expression because of

its message, its ideas, its subject matter, or its content.” Police Dept. of City of

Chicago v. Mosley, 408 U.S. 92, 95, 33 L. Ed. 2d 212, 216 (1972) (citation omitted). As

a result, “[c]ontent-based laws — those that target speech based on its communicative

content — are presumptively unconstitutional and may be justified only if the

government proves that they are narrowly tailored to serve compelling state

interests.” Reed, __ U.S. at __, 192 L. Ed. 2d. at 245 (citation omitted). Conversely,

“[g]overnment regulation of expressive activity is content neutral so long as it is



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                                  Murphy, J., concurring



justified without reference to the content of the regulated speech.” Ward v. Rock

Against Racism, 491 U.S. 781, 791, 105 L. Ed. 2d. 661, 675 (citation and quotation

marks omitted).

      In Bishop, our Supreme Court recently addressed a constitutional challenge to

North Carolina’s cyberbullying statute. Bishop, 368 N.C. at 872, 787 S.E.2d at 817.

Although Bishop involved a facial — rather than an as-applied — challenge, we

nevertheless find the Supreme Court’s decision instructive in guiding our analysis in

the present case.

      The provision of the cyberbullying statute being challenged in Bishop provided,

in relevant part, as follows:

             (a) Except as otherwise made unlawful by this Article, it
             shall be unlawful for any person to use a computer or
             computer network to do any of the following:

                  (1) With the intent to intimidate or torment a minor:

                  ....

                     d. Post or encourage others to post on the Internet
                     private, personal, or sexual information pertaining
                     to a minor.

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

      In assessing the constitutionality of that provision, our Supreme Court first

analyzed whether the regulation implicated the First Amendment by restricting

protected speech. Bishop, 368 N.C. at 872, 787 S.E.2d at 817. After determining that



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the statute did, in fact, regulate protected speech because it “outlawed posting

particular subject matter, on the internet, with certain intent[,]” the Court proceeded

to its “second threshold inquiry” — whether N.C. Gen. Stat. § 14-458.1(a)(1)(d) was a

content-based or content-neutral restriction. Id. at 873, 874, 787 S.E.2d at 817, 818.

The Court explained the importance of this distinction as follows:

             This central inquiry determines the level of scrutiny we
             apply here. Content based speech regulations must satisfy
             strict scrutiny.    Such restrictions are presumptively
             unconstitutional and may be justified only if the
             government proves that they are narrowly tailored to serve
             compelling state interests. In contrast, content neutral
             measures . . . are subjected to a less demanding but still
             rigorous form of intermediate scrutiny. The government
             must prove that they are narrowly tailored to serve a
             significant governmental interest, and that they leave open
             ample alternative channels for communication of the
             information.

Id. at 874-75, 787 S.E.2d at 818 (internal citations and quotation marks omitted).

The Supreme Court ultimately concluded that the cyberbullying statute was content-

based because it “defines regulated speech by its particular subject matter” in

“criminaliz[ing] 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.”      Id. at 876, 787 S.E.2d at 819 (citation, quotation marks, and

brackets omitted).

      The Court then proceeded to examine whether the challenged provision of the

cyberbullying statute survived strict scrutiny. After determining that the protection


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of minors from online bullying represented a compelling governmental interest, it

analyzed whether N.C. Gen. Stat. § 14-458.1(a)(1)(d) “embodies the least restrictive

means of advancing the State’s compelling interest in protecting minors from this

potential harm.” Id. at 878, 787 S.E.2d at 820. The Court ultimately held that the

provision failed the strict scrutiny test and therefore violated the First Amendment,

concluding as follows:

             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.

             . . . N.C. Gen. Stat. § 14-458.1(a)(1)(d) could criminalize
             behavior that a robust contemporary society must tolerate
             because of the First Amendment, even if we do not approve
             of the behavior. . . .

             In sum, however laudable the State’s interest in protecting
             minors from the dangers of online bullying may be, North
             Carolina’s cyberbullying statute creates a criminal
             prohibition of alarming breadth.

Id. at 879, 787 S.E.2d at 821 (citations, quotation marks, and brackets omitted).

             1. “Speech Integral to Criminal Conduct” Exception

      Having reviewed the pertinent legal principles implicated by Defendant’s

arguments on appeal, we now turn our attention to Defendant’s constitutional

argument itself. Before we apply the analysis applicable to challenges brought under

the First Amendment, however, we must first address the threshold issue raised by



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the State that Defendant’s Google Plus posts are excluded from First Amendment

protection. Specifically, the State contends that Defendant’s posts constitute “speech

that is integral to criminal conduct” — a category of speech that falls outside of the

protection provided by the First Amendment. We disagree.

      Although it is well established that content-based speech restrictions are

presumptively invalid, certain categories of expression are wholly excluded from First

Amendment protection. See U.S. v. Stevens, 559 U.S. 460, 468-69, 176 L. Ed. 2d 435,

444 (2010) (listing obscenity, defamation, fraud, and “speech integral to criminal

conduct” as examples of “well-defined and narrowly limited classes of speech, the

prevention and punishment of which have never been thought to raise any

Constitutional problem” (internal citations and quotation marks omitted)).       “[I]t

rarely has been suggested that the constitutional freedom for speech . . . extends its

immunity to speech or writing used as an integral part of conduct in violation of a

valid criminal statute.” New York v. Ferber, 458 U.S. 747, 761-62, 73 L. Ed. 2d 1113,

1125-26 (1982) (citation and quotation marks omitted); see id. at 758-59, 73 L. Ed. 2d

at 1124 (holding ban on distribution of child pornography “passes muster under the

First Amendment” because speech at issue was “intrinsically related to the sexual

abuse of children”).

      In evaluating the State’s argument on this issue, we find the decision from the

Illinois Supreme Court in People v. Relerford, 2017 IL 121094, ¶1, 104 N.E.3d 341 to



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be helpful.2 In Relerford, the court invalidated certain provisions of Illinois’ stalking

and cyberstalking statutes as facially violative of the First Amendment. Id. at ¶63,

104 N.E.3d at 356. The challenged provision of the stalking statute — which was

very similar to the pertinent language from N.C. Gen. Stat. § 14-277.3A — stated

that “two or more nonconsensual communications to or about a person that the

defendant knows or should know would cause a reasonable person to suffer emotional

distress constitute a course of conduct sufficient to establish the offense of stalking.”

Id. at ¶29, 104 N.E.3d at 349. In determining that the above-quoted provision was

constitutionally invalid, the Illinois court rejected the state’s argument that the

statutory provision merely regulated speech integral to criminal conduct:

               In light of the fact that a course of conduct can be premised
               exclusively on two communications to or about a person,
               this . . . is a direct limitation on speech that does not
               require any relationship — integral or otherwise — to
               unlawful conduct. Under [the statute], the speech is the
               criminal act.

Id. at ¶45, 104 N.E.3d at 352.

       As noted above, N.C. Gen. Stat. § 14-277.3A provides, in pertinent part, as

follows:

               (c) Offense. — A defendant is guilty of stalking if the


       2 Although it is axiomatic that we are not bound by decisions from the appellate courts of
another state unless we are applying the law of that jurisdiction, we are permitted to consider them
as persuasive authority. See State v. Williams, 232 N.C. App. 152, 157, 754 S.E.2d 418, 422 (“While
we recognize that decisions from other jurisdictions are, of course, not binding on the courts of this
State, we are free to review such decisions for guidance.” (citation and quotation marks omitted)),
appeal dismissed and disc. review denied, 367 N.C. 784, 766 S.E.2d 846 (2014).

                                                 20
                                 STATE V. SHACKELFORD

                                     Murphy, J., concurring



              defendant willfully on more than one occasion . . . engages
              in a course of conduct directed at a specific person without
              legal purpose and the defendant knows or should know
              that the . . . course of conduct would cause a reasonable
              person to do any of the following:

              ....

                   (2) Suffer substantial emotional distress by placing that
                   person in fear of death, bodily injury, or continued
                   harassment.

N.C. Gen. Stat. § 14-277.3A. Moreover, “[c]ourse of conduct” is defined in the statute

as “[t]wo or more acts, including, but not limited to, acts in which the stalker directly,

indirectly,   or   through   third    parties, by      any    action,   method,   device,   or

means . . . communicates to or about a person[.]” N.C. Gen. Stat. § 14-277.3A(b)(1)

(emphasis added).

      Thus, the pertinent statutory language at issue here is virtually identical to

the statutory provision declared to be unconstitutional in Relerford in that two or

more communications by a defendant to or about another person can constitute a

course of conduct sufficient to support a stalking conviction.             Here, all four of

Defendant’s indictments were premised either entirely or in part upon social media

posts referencing Mary — posts that he wrote about Mary but did not send directly

to her (or, for that matter, to anyone else). Pursuant to the language of N.C. Gen.

Stat. § 14-277.3A, no additional conduct on his part was needed to support his

stalking convictions. Rather, his speech itself was the crime.



                                              21
                                    STATE V. SHACKELFORD

                                      Murphy, J., concurring



       For this reason, the First Amendment is directly implicated by Defendant’s

prosecution under N.C. Gen. Stat. § 14-277.3A.                 We therefore reject the State’s

argument that Defendant’s posts fall within the “speech integral to criminal conduct”

exception. See United Food & Commer. Workers Local 99 v. Bennett, 934 F. Supp. 2d

1167, 1208 (D. Ariz. 2013) (“[The statute] does not incidentally punish speech that is

integral to a criminal violation; the speech itself is the criminal violation.”).3

               2. Analysis Under First Amendment

       Having concluded that the First Amendment is, in fact, triggered by

Defendant’s convictions, we next proceed to analyze Defendant’s free speech

argument within the framework adopted by the United States Supreme Court. As

an initial matter, in order to determine the appropriate level of scrutiny to apply, we

must first decide whether the application of N.C. Gen. Stat. § 14-277.3A to

Defendant’s posts represented a content-based or content-neutral restriction on

speech.

               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. . . . Our precedents have
               also recognized a separate and additional category of laws
               that, though facially content neutral, will be considered
               content-based regulations of speech: laws that cannot be
               justified without reference to the content of the regulated

       3  While threats also constitute a type of speech that does not receive First Amendment
protection, see Virginia v. Black, 538 U.S. 343, 359, 155 L. Ed. 2d 535, 552 (2003) (“[T]he First
Amendment also permits a [s]tate to ban a true threat.” (citation and quotation marks omitted)), the
State conceded at oral argument that none of Defendant’s Google Plus posts constituted threats
against Mary.

                                                22
                               STATE V. SHACKELFORD

                                 Murphy, J., concurring



             speech[.]

Reed, __ U.S. at __, 192 L. Ed. 2d. at 245 (internal citations and quotation marks

omitted). Restrictions are also content-based if they are “concerned with undesirable

effects that arise from the direct impact of speech on its audience or listeners’

reactions to speech.” McCullen v. Coakley, __ U.S. __, __, 189 L. Ed. 2d 502, 517

(2014) (citation and quotation marks omitted).

      Once again, we find Relerford to be helpful to our analysis of this issue. There,

the court concluded that the challenged provision of the Illinois stalking statute was

a content-based restriction because the prohibition contained in the statutory

language against “communications to or about a person that negligently would cause

a reasonable person to suffer emotional distress criminalizes certain types of speech

based on the impact that the communication has on the recipient.” Relerford, 2017

IL 121094 at ¶34, 104 N.E.3d at 351.

             Under the relevant statutory language, communications
             that are pleasing to the recipient due to their nature or
             substance are not prohibited, but communications that the
             speaker knows or should know are distressing due to their
             nature or substance are prohibited. Therefore, it is clear
             that the challenged statutory provision must be considered
             a content-based restriction because it cannot be justified
             without reference to the content of the prohibited
             communications.

Id. (citation omitted). Similarly, in Bishop our Supreme Court determined that N.C.

Gen. Stat. § 14-458.1(a)(1)(d) was a content-based restriction because the language of



                                          23
                                STATE V. SHACKELFORD

                                  Murphy, J., concurring



North Carolina’s cyberbullying statute made it “impossible to determine whether the

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

Bishop, 368 N.C. at 876, 787 S.E.2d at 819.

      In the present case, based on the text of N.C. Gen. Stat. § 14-277.3A Defendant

was subject to prosecution if he knew or should have known that his Google Plus posts

“would cause a reasonable person to . . . [s]uffer substantial emotional distress[.]”

N.C. Gen. Stat. § 14-277.3A(c)(2). Such a determination simply could not be made

without reference to the content of his posts.         See Forsyth Cty. v. Nationalist

Movement, 505 U.S. 123, 134, 120 L. Ed. 2d 101, 114 (1992) (“Listeners’ reaction to

speech is not a content-neutral basis for regulation.” (citation omitted)).

      Therefore, we hold that as applied to Defendant N.C. Gen. Stat. § 14-277.3A

constituted a content-based restriction on speech. As a result, our final step in the

analysis is to determine whether the application of N.C. Gen. Stat. § 14-277.3A to the

messages contained in Defendant’s social media posts satisfies strict scrutiny review.

We conclude that it does not.

      In order to survive a strict scrutiny analysis, “the State must show that the

statute serves a compelling governmental interest, and that the law is narrowly

tailored to effectuate that interest.” Bishop, 368 N.C. at 876, 787 S.E.2d at 819. As

our Supreme Court has explained, “[t]he State must show not only that a challenged

content based measure addresses the identified harm, but that the enactment



                                           24
                                STATE V. SHACKELFORD

                                 Murphy, J., concurring



provides the least restrictive means of doing so. Given this exacting scrutiny, it is

perhaps unsurprising that few content based restrictions have survived this inquiry.”

Id. at 877-78, 787 S.E.2d at 820 (internal citations and quotation marks omitted).

      In Bishop, the Supreme Court held that the challenged statute failed strict

scrutiny because it did not “embod[y] the least restrictive means of advancing the

State’s compelling interest in protecting minors from [cyberbullying].” Id. at 878, 787

S.E.2d at 820.     As discussed above, that statute criminalized “[p]ost[ing] or

encourag[ing] others to post on the Internet private, personal, or sexual information

pertaining to a minor” with the intent “to intimidate or torment a minor.” N.C. Gen.

Stat. § 14-458.1. In concluding that the statute failed strict scrutiny, the Supreme

Court reasoned that “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.” Bishop, 368 N.C. at 878, 787 S.E.2d at 821. The

Court was particularly troubled by the scope of the statutory language prohibiting

the posting of “private, personal, or sexual information pertaining to a minor,” which

“would essentially criminalize posting any information about any specific minor if

done with the requisite intent.” Id. at 879, 787 S.E.2d at 821.

      The Illinois Supreme Court invalidated the challenged provision of the stalking

statute at issue in Relerford due to similar concerns about overbreadth. In concluding

that the provision was unconstitutional, the court stated as follows:



                                          25
                               STATE V. SHACKELFORD

                                 Murphy, J., concurring



             [S]ubsection (a) embraces a vast array of circumstances
             that limit speech far beyond the generally understood
             meaning of stalking. Indeed, the amended provision
             criminalizes any number of commonplace situations in
             which an individual engages in expressive activity that he
             or she should know will cause another person to suffer
             emotional distress. The broad sweep of subsection (a)
             reaches a host of social interactions that a person would
             find distressing but are clearly understood to fall within
             the protections of the first amendment.

Relerford, 2017 IL 121094 at ¶52, 104 N.E.3d at 353-54.

      Here, the State contends that the application of N.C. Gen. Stat. § 14-277.3A to

Defendant’s Google Plus posts is sufficient to withstand strict scrutiny because (1)

the prevention of stalking “before it escalates into more harmful or lethal criminal

behavior” is a compelling state interest; and (2) the statute is the least restrictive

means of accomplishing this goal in that it “is limited to willful or knowing conduct,

directed at a specific person, that would cause a reasonable person to suffer fear or

substantial emotional distress.” However, even assuming arguendo that the statute

serves a compelling governmental interest in preventing the escalation of stalking

into more dangerous behavior, we are not persuaded that the application of N.C. Gen.

Stat. § 14-277.3A to Defendant’s posts represented the least restrictive means of

accomplishing that goal.

      Prior to Defendant’s indictments, Mary had already sought and received a no-

contact order in district court that prohibited him from approaching or contacting

her. Given the existence of a no-contact order against Defendant, strict enforcement


                                          26
                                    STATE V. SHACKELFORD

                                      Murphy, J., concurring



of the terms of that order clearly represented a less restrictive means by which the

State could have pursued its interest in preventing Defendant from engaging in a

criminal act against her.4

       The pertinent language of N.C. Gen. Stat. § 14-277.3A that formed the basis

for Defendant’s convictions is virtually identical to the provision in the Illinois

stalking statute struck down as overbroad in Relerford. We believe the reasoning of

the Illinois Supreme Court on this issue is both sound and equally applicable to the

present case.      As in Bishop, Defendant was convicted pursuant to a “criminal

prohibition of alarming breadth” that “could criminalize behavior that a robust

contemporary society must tolerate because of the First Amendment, even if we do

not approve of the behavior.” Bishop, 368 N.C. at 879, 787 S.E.2d at 821 (citation and

quotation marks omitted). For these reasons, we hold that the application of N.C.

Gen. Stat. § 14-277.3A to Defendant’s social media posts constitutes a violation of his

First Amendment rights in that applying the statute to him under these

circumstances amounts to a content-based restriction on his speech that fails to

satisfy strict scrutiny.

II.   Remedy




       4  The trial court dismissed Defendant’s stalking charges premised upon his violation of the
portion of the no-contact order that prohibited him from “posting any information about [Mary] on
social media” due to constitutional concerns. However, as counsel for Defendant acknowledged at oral
argument, no similar concerns would have existed with regard to the provisions of the order requiring
Defendant to refrain from approaching or directly contacting Mary.

                                                 27
                               STATE V. SHACKELFORD

                                 Murphy, J., concurring



      Having    determined    that   Defendant’s     Google   Plus   posts   could   not

constitutionally form the basis for his convictions, we must separately examine the

conduct giving rise to each of his four convictions to determine the extent to which

each conviction was impermissibly premised upon his social media activity.

      A. 16 CRS 10028-30

      Defendant’s conviction in 16 CRS 10028 was premised entirely upon five

Google Plus posts that he made to his account between 27 September and 4 October

2015. Therefore, because the State did not rely on any other acts by him during this

time period to support this charge, we vacate the conviction.

      With regard to 16 CRS 10029 and 10030, the date ranges on their respective

indictments overlap.   16 CRS 10029 includes conduct that occurred between 13

August 2015 and 16 August 2015 while 16 CRS 10030 covers the time period from 2

June 2015 to 28 August 2015. Both charges are premised upon multiple Google Plus

posts made by Defendant as well as the 13 August 2015 delivery of cupcakes to Mary’s

workplace — an act that fell within the date ranges of both indictments.

      Defendant’s delivery of cupcakes to Mary — unlike his Google Plus posts —

constituted non-expressive conduct rather than speech and therefore was not

protected under the First Amendment. See id. at 872, 787 S.E.2d at 817 (“We must

first determine whether [the statute] restricts protected speech or expressive conduct,

or whether the statute affects only nonexpressive conduct. Answering this question



                                          28
                               STATE V. SHACKELFORD

                                   Murphy, J., concurring



determines whether the First Amendment is implicated.” (citation omitted)).

However, under the definition of the phrase “course of conduct” contained in N.C.

Gen. Stat. § 14-277.3A, a single act is not enough to support a stalking conviction.

Rather, “two or more acts” are required. N.C. Gen. Stat. § 14-277.3A(b)(1). Therefore,

Defendant’s convictions in 16 CRS 10029 and 10030 must also be vacated.

      B. 16 CRS 10034

      Defendant’s indictment in 16 CRS 10034 encompassed the time period between

11 November 2015 and 22 December 2015.              His indictment on that charge was

premised upon three of his Google Plus posts along with the two emails that

Defendant sent to Mary’s friend.

      Even assuming — without deciding — that Defendant’s emails to her friend

are not entitled to First Amendment protection, this conviction must likewise be

vacated. It is well established that where a defendant’s conviction may have rested

on a constitutional ground or an unconstitutional ground and it cannot be determined

which ground the jury relied upon, the conviction must be vacated. See, e.g., Griffin

v. United States, 502 U.S. 46, 53, 116 L. Ed. 2d 371, 379 (1991) (“[W]here a provision

of the Constitution forbids conviction on a particular ground, the constitutional

guarantee is violated by a general verdict that may have rested on that ground.”);

Bachellar v. Maryland, 397 U.S. 564, 569-70, 25 L. Ed. 2d 570, 575 (1970) (“[T]he jury

could have rested its verdict on any of a number of grounds. . . . [P]etitioners may



                                            29
                                STATE V. SHACKELFORD

                                  Murphy, J., concurring



have been found guilty . . . because they advocated unpopular ideas. Since conviction

on this ground would violate the Constitution, it is our duty to set aside petitioners’

convictions.”).

       In the present case, the jury returned general verdicts that did not state the

specific acts forming the basis for each conviction. For this reason, based on the

record before us we cannot determine whether Defendant’s conviction in 16 CRS

10034 was premised upon his social media posts, the emails to Mary’s friend, or a

combination of the two. Therefore, because this conviction may have likewise rested

upon an unconstitutional ground, it must be vacated as well. See Stromberg v.

California, 283 U.S. 359, 369-70, 75 L. Ed. 1117, 1123 (1931) (“The first clause of the

statute being invalid upon its face, the conviction of the appellant, which so far as the

record discloses may have rested upon that clause exclusively, must be set aside.”).

                                          ***

       As this case aptly demonstrates, difficult issues arise in attempting to balance,

on the one hand, society’s laudable desire to protect individuals from emotional injury

resulting from unwanted and intrusive comments with, on the other hand, the free

speech rights of persons seeking to express themselves on social media. Our courts

will no doubt continue to grapple with these issues going forward. In the present

case, however, it is clear that Defendant’s convictions violated his constitutional right

to free speech. His Google Plus posts about Mary — while understandably offensive



                                           30
                                   STATE V. SHACKELFORD

                                     Murphy, J., concurring



to her — constituted protected speech that cannot constitutionally be prohibited by

the State. As such, we are compelled to vacate his convictions.5

                                         Conclusion

       For the reasons stated above, we vacate Defendant’s convictions for felony

stalking.

       VACATED.

       Judge HUNTER, JR. concurs.

       Judge MURPHY concurring by separate opinion.




       5 Based on our ruling, we need not address the additional arguments Defendant has raised in
this appeal.

                                               31
 No. 18-273 – State v. Shackelford


       MURPHY, Judge, concurring by separate opinion.


       I concur with the Majority that Defendant’s convictions under N.C. Gen. Stat.

§ 14-277.3A should be vacated. I write separately to express additional thoughts

regarding the inapplicability of the First Amendment’s speech integral to criminal

conduct exception to Defendant’s convictions.

       The U.S. Supreme Court, as the Majority notes, has long made clear that First

Amendment protections of freedom of speech do not extend to “speech or writing used

as an integral part of conduct in violation of a valid criminal statute.” Giboney v.

Empire Storage & Ice Co., 336 U.S. 490, 498, 93 L. Ed. 834, 841 (1949). It has been

noted that the “boundaries and underlying rationale [of the speech integral to

criminal conduct exception] have not been clearly defined, leaving the precise scope

of the exception unsettled.”       U.S. v. Osinger, 753 F.3d 939, 950 (9th Cir. 2014)

(Watford, J., concurring). The difficulties of applying this nebulous exception are

compounded in the context of stalking crimes, where the lines between speech and

non-speech conduct are often blurred. Thus, it is necessary to return to the basic

tenet of the exception and carefully analyze the actions of a defendant to determine

the exception’s applicability, lest all speech be relabeled conduct and stripped of its

First Amendment protections.6




       6  See Eugene Volokh, The “Speech Integral to Criminal Conduct” Exception, 101 Cornell L.
Rev. 981, 1039-40 (2016).
                                STATE V. SHACKELFORD

                                  Murphy, J., concurring



      The State contends that this exception necessarily applies to the crime of

stalking. It argues, “Stalking harasses and intimidates its victims. When these

harms flow from any expressive aspect of stalking, that expressive aspect is integral

to the crime.” This is an oversimplification of the exception. “[S]peech or writing

used as an integral part of conduct in violation of a valid criminal statute” falls within

the exception and is unprotected by the First Amendment. Giboney, 336 U.S. at 498,

93 L. Ed. at 841 (emphasis added). Thus, the speech itself must be proximately linked

to a criminal act and cannot serve as the basis for the criminal act itself.          See

Relerford, 2017 IL 121094 at ¶ 45, 104 N.E.3d at 352 (2017). Stated differently, there

must be non-speech conduct to which the speech is integral.

      Here, the Majority notes that each indictment was “premised either entirely or

in part upon social media posts referencing Mary – posts that he wrote about Mary

but did not send directly to her (or, for that matter, to anyone else).” Section I(C)(1),

supra. I believe this is a critical distinction in this case, as the nature of these posts

cannot be conduct that serves as the basis for a stalking conviction. As our Supreme

Court has noted, “[p]osting information on the Internet – whatever the subject matter

– can constitute speech as surely as stapling flyers to bulletin boards or distributing

pamphlets to passersby – activities long protected by the First Amendment.” State

v. Bishop, 368 N.C. 869, 873, 787 S.E.2d 814, 817 (2016). This is of significant import

under a First Amendment analysis, as one court has noted in an as-applied challenge



                                            2
                                      STATE V. SHACKELFORD

                                        Murphy, J., concurring



to the federal statute, “[o]ne does not have to walk over and look at another person’s

bulletin board; nor does one Blog or Twitter user have to see what is posted on another

person’s Blog or Twitter account. This is in sharp contrast to a telephone call, letter

or e-mail specifically addressed to and directed at another person . . . .” See U.S. v.

Cassidy, 814 F. Supp. 2d 574, 578 (D. Md. 2011). In the latter situation, there is

speech to a person individually, whereas the former is merely speech about a person.7

       This is a key distinction because in cases where speech is made, such as

through telephone harassment or unwanted contact through mailings, to a single

recipient    repeatedly,      First    Amendment          considerations       of   protecting     the

communication of ideas is diminished when the recipient is an unwilling listener.

The expressive value is diminished. See Rumsfeld v. Forum for Acad. & Inst'l Rights,

Inc., 547 U.S. 47, 66, 164 L. Ed. 2d 156, 175 (2006) (“Instead, we have extended First

Amendment protection only to conduct that is inherently expressive[, such as flag

burning].”). Yet, a public posting that is not aimed or directed at a single person

retains its expressive value (assuming no other exceptions, such as true threats, is

applicable to the speech). Of course, the ubiquitous nature of social media in modern



       7  See Eugene Volokh, One–to–One Speech vs. One–to–Many Speech, Criminal Harassment
Laws, and “Cyberstalking,” 107 Nw. U. L. Rev. 731, 742 (2013) (“[Laws addressing telephone
harassment, stalking, and unwanted mailings] have one thing in common: In the great bulk of their
applications, they restrict what one may call ‘unwanted one-to-one’ speech – speech said to a particular
person in a context where the recipient appears not to want to hear it, whether because the recipient
has expressly demanded that the speech stop or because the speaker intends to annoy or offend the
recipient. The laws are aimed at restricting speech to a person, not speech about a person. And that
is the context in which they have generally been upheld against First Amendment challenge.”)

                                                   3
                                STATE V. SHACKELFORD

                                  Murphy, J., concurring



society and the ability of posters to “tag” or “direct message” other users may impact

this analysis; however, that is not the case with Defendant’s Google+ postings. These

postings, while numerous, cannot themselves constitute “conduct.” See Bishop, 368

N.C. at 874, 787 S.E.2d at 818 (“Such communication does not lose protection merely

because it involves the ‘act’ of posting information online, for much speech requires

an ‘act’ of some variety – whether putting ink to paper or paint to canvas, or hoisting

a picket sign, or donning a message-bearing jacket.”)

      To be clear, there was action taken by Defendant that constituted non-speech

conduct – sending cupcakes to Mary. However, N.C. Gen. Stat. § 14-277.3A permitted

the jury to base their conviction in each indictment on the social media posts made to

the public alone. See N.C. Gen. Stat. § 14-277.3A(b)(1) (defining course of conduct as

“[t]wo or more acts . . . in which the stalker . . . communicates to or about a person . .

. ”) (emphasis added). As the Majority notes, this impermissibly allowed “the speech

itself [to be] the crime” and did not require speech to be integral to separate conduct.

See Section I(C)(1) supra.

      I also wish to address the State’s citation of Osinger in support of its argument

that Defendant’s posts were speech integral to criminal conduct and explain why such

a case upholding the constitutionality of the federal interstate stalking statute is

distinguishable from the case and the statute before us. In Osinger, while analyzing

the defendant’s as-applied challenge to the federal interstate stalking statute, the



                                            4
                               STATE V. SHACKELFORD

                                 Murphy, J., concurring



Ninth Circuit held that “[a]ny expressive aspects of Osinger’s speech were not

protected under the First Amendment because they were ‘integral to criminal

conduct’ in intentionally harassing, intimidating or causing substantial emotional

distress.” Osinger, 753 F.3d at 947. The Osinger case is fully distinguishable on two

bases. First, Congress defined “course of conduct” as “a pattern of conduct composed

of 2 or more acts, evidencing a continuity of purpose.” Id. at 944 (citing 18 U.S.C. §

2266(2)) (emphasis added). Congress included no language indicating that a course

of conduct could be established solely by two communications about a person, as is

the case with N.C. Gen. Stat. § 14-277.3A. Moreover, as the Osinger concurrence

noted, that case did not present the court with the question of whether a stalking

prosecution would be constitutional in situations where “the defendant caused

someone substantial emotional distress by engaging only in otherwise protected

speech.” Osinger, 753 F.3d at 954 (Watford, J., concurring). Accordingly, our as-

applied analysis differs from that in Osinger.

      In conclusion, I recognize the challenges that modern social media present in

the context of stalking crimes. These challenges will continue to produce difficult

questions of how to apply First Amendment principles, such as the speech integral to

criminal conduct exception, in these increasingly complex situations. While many of

these questions go beyond the scope of this concurrence or our Majority opinion, I




                                           5
                           STATE V. SHACKELFORD

                            Murphy, J., concurring



concur in the case before us, as the First Amendment requires us to vacate

Defendant’s convictions.




                                      6
