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IN THE SUPERIOR COURT OF NORTH CAROLINA

STATE OF NORTH CAROLINA in Orange County

v.

NAPIER SANDFORD FULLER, No. 17-CRS-050340

Defendant-Appellant, pro se.

MOTION TO REQUEST DISQUALIFICATION


OF CARL R. FOX PER NC CODE OF JUDICIAL CONDUCT

TO THE HONORABLE SUPERIOR COURT OF ORANGE COUNTY:

1. The self-represented Defendant-Appellant, Napier Sandford Fuller,

(hereafter referred to as “Mr. Fuller”) respectfully petitions this Superior Court,

pursuant to the North Carolina Code of Judicial Conduct (Canon 3, § C), for

the voluntary recusal of Superior Court Judge Carl R. Fox from this case which

is in the post-conviction phase and not yet formally docketed in the North

Carolina Appeals Court. Thus, motions for appropriate relief are now within this

court’s jurisdiction. In support of this motion, the Defendant-Appellant shows

the following:

2. North Carolina’s Bar’s Rules of Professional Conduct, Rule #8.2, observes

that “unrestrained and intemperate statements [about judicial misconduct] tend


to lessen public confidence in our legal system. Criticisms motivated by reasons

other than a desire to improve the legal system are not justified.”

Legal Reasoning to Request Disqualification of Mr. Fox

3. Mr. Fuller brings this motion within the following framework: Mr. Fuller

aims to improve our state’s legal system as it relates to the state’s compliance

with federal disability laws.

4. 28 U.S.C. § 455(a) states, “Any justice [or] judge ... shall disqualify himself

in any proceeding in which his impartiality might reasonably be questioned.”


5. North Carolina Code of Judicial Conduct1 (Canon 3, § C) states:
“On motion of any party, a judge should disqualify himself/herself in a
proceeding in which the judge’s impartiality may reasonably be questioned,
including, but not limited to, instances where:
(a) The judge has a personal bias or prejudice concerning a party;
(c) The judge knows that he/she, individually ... has a financial interest in the
subject matter in controversy;
(d) The judge ... (i) Is a party to the proceeding or (iv) Is to the judge’s
knowledge likely to be a [party] in the proceeding.”

6. It is in Canon 3, § C(d)(iv) that Mr. Fuller requests disqualification in

addition the common sense found in 28 U.S.C. § 455(a).

7. To wit, per Canon 3, § C(c) Mr. Fox has a financial interest in this subject

matter2, as he is soon to become a defendant in the subject matter of the


controversy3.

8. Mr. Fox is employed by the State of North Carolina judiciary (the

N.C.A.O.C.), a unit of the State of North Carolina, in the role of a Superior

Court Judge.
1 Amended by Order of the Supreme Court of North Carolina on November 6, 2015.
2 See discussion of the Civil Rights Attorney’s Fees Awards Act of 1976 as applied in Pulliam v. Allen.
3 See derivative cases: 7:18-cv-00059-FL (EDNC) and USCA4 19-1110.

2
9. The State of North Carolina receives more than $15 billion in federal

funds each year and is therefore obligated to create an administrative

processes to ensure compliance with federal disability laws in all of its

governmental units.

10. Mr. Fuller has asserted that state judges, including Mr. Fox, have an

administrative function in processing, evaluating, and responding to Mr.

Fuller’s written requests under Title II of the ADA, which is administrative in

nature.

11. A USDOJ amicus curiae brief prepared in 1993 in Santiago v. Garcia,

98-1993 supports this theory. In this dispute, a deaf pro se litigant requested

ADA accommodations from a state judge in order to more effectively

participate in his own trial. Here are some key quotes from Santiago germane

to this present motion:


Defendants [state judges] have moved to dismiss on several grounds. The
United States as amicus curiae urges the Court to deny the motions as to
plaintiff’s ADA claim, because contrary to the basis on which the Defendants
seek such dismissal:

(i) Plaintiff has pleaded a prima facie case under title II of the ADA.

(ii) Congress has specifically abrogated the States’ eleventh amendment


immunity for suits brought pursuant to the ADA.

(iii) Under title II of the ADA the Defendants can be sued in their official
capacities.

(iv) Judges do not enjoy absolute immunity for acts that are administrative rather
than judicial in nature.

Based on the language of the ADA, Defendants’ [immunity] argument is


without merit. In the ADA, Congress expressly abrogated the States’ eleventh
amendment immunity.

Given the abrogation of state immunity by the ADA, claims can be brought
against a state judge in his/her individual or official capacity under the ADA but
for the doctrine of judicial immunity.

In its enforcement of the ADA, the United States has seen that [state] courts

3
establish system-wide administrative policies and leave the task of processing
individual requests to system-wide administrators rather than individual judges.
This court should not dismiss [state judges] from the case before plaintiff has an
opportunity to prove that the Judge acted administratively, not judicially, when
refusing plaintiff’s [ADA request].

For the foregoing reasons, the United States respectfully requests that this court
deny Defendants’ motions to dismiss.

The key point from Santiago is that the process of receiving, evaluating,

and complying with ADA requests for access to government services is

administrative: state courts of justice are no exception.


12. Disputes of ADA in terms of access to state courts are resolved in federal

courts. Specifically, an opinion by Justice John Paul Stevens in Tennessee v.

Lane, 541 U.S. 509 (2004) is worth exploring. Justice Stevens’ lengthy analysis

found that immunity defenses do not apply when a qualified disabled party is

prevented from having equal access to the state court system itself.

13. In Lane, the U.S. Supreme Court recounted congressional studies showing

systemic violations of the fundamental constitutional rights of the disabled by

state courts that have persisted long after the ADA was passed. Here are some
quotes from Lane that are germane to Mr. Fuller’s complaint:
The unequal treatment of disabled persons in the administration of judicial
services has a long history, and has persisted despite several legislative efforts
to remedy the problem of disability discrimination. Faced with considerable
evidence of the shortcomings of previous legislative responses, Congress was
justified in concluding that this “difficult and intractable probable[m]” warranted
“added prophylactic measures in response.” Hibbs, 538 U. S., at 737 (internal
quotation marks omitted).

Recognizing that failure to accommodate persons with disabilities will often


have the same practical effect as outright exclusion, Congress required
the States to take reasonable measures ... It requires only “reasonable
modifications” that would not fundamentally alter the nature of the service
provided, and only when the individual seeking modification is otherwise eligible
for the service.

4
This duty to accommodate is perfectly consistent with the well-established due
process principle that, “within the limits of practicability, a State must afford to all
individuals a meaningful opportunity to be heard” in its courts. Boddie, 401 U. S., at
379.

Mr. Fox Connected to a Federal Legal Controversy


14. On April 4, 2018, Mr. Fuller filed an 18-page federal complaint against six
judicial officials employed by the State of North Carolina:
15. Mr. Fuller made the following claims in his initial complaint:
Defendant Rebecca W. Holt superior court judge
Defendant Richard A. Baddour superior court judge
Defendant James C. Stanford clerk of court
Defendant James T. Bryan, III district court judge
Defendant Samantha Hyatt Cabe district court judge
Defendant Catherine C. Stevens emergency district court judge

16. Mr. Fuller made the following claims in his initial complaint:

“Defendants past and current discrimination against Plaintiff violates Title II of


Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101, and the Federal
regulations promulgated pursuant to the Act at 28 C.F.R. Part 35 et seq.
“Plaintiff avers retaliation and vindictiveness in conduct of Defendants. Plaintiff has
hours of audio recordings of his court appearances and many emails as evidence
for the court to consider.”

17. On August 9, 2018, Mr. Fuller, a self-represented defendant, was convicted

of a single misdemeanor, Cyberstalking § 14-196.3(b)(2), after a chaotic jury trial in

Orange County, NC. The case was presided over by Superior Court Judge George

Bryan Collins, Jr., who later set a $50,000 secured bond in abstenia for the $1,000

fine on appeal.

18. According to the NIH4, Fuller’s mental disorder manifests as oscillating


patterns between being too withdrawn and being too intrusive. The key concepts

are as follows:
4 https://www.nimh.nih.gov/health/topics/attention-deficit-hyperactivity-disorder-adhd/index.shtml

5
“Symptoms of the withdrawn phase include: problems sustaining attention
in conversations, not following instructions, being distracted by unrelated
thoughts.”

“Symptoms of the intrusive phase include: talking nonstop, interrupting or


intruding in conversations, constant moving about, and aggressive behaviors
that have high potential for harm.”

“These problems are not due to defiance or lack of comprehension.”

19. On November 20, 2018, Mr. Fuller’s federal lawsuit against Orange County

judicial officials was dismissed with prejudice, based upon two technicalities

related to immunity. The legal question was one of relief, as the Defendants’

claimed two forms of immunity: judicial and sovereign. However, the undisputed

facts, as summarized by Judge Louise Flanigan, make it quite clear that Mr. Fuller’s

federal rights had indeed been violated by the State of North Carolina in the

prosecution of case 17-CRS-050340.

20. Title II of the ADA provides that “no qualified individual with a disability

shall, by reason of such disability, be excluded from participation in or be denied

the benefits of the services, programs, or activities of a public entity, or be

subjected to discrimination by any such entity.” See 42 U.S.C. § 12132.

21. Quoting from a recent USDOJ amicus brief5 the United States argued “to

state a claim under title II of the ADA, a plaintiff must prove three elements: (i)

that he is a qualified individual with a disability, (ii) that he was discriminated

against by being excluded from or denied the benefits of a public entity’s

services, and (iii) that he was discriminated against because of his disability.

22. Mr. Fuller plans to sue Mr. Fox in federal court, alleging ADA violations

5 See USDOJ amicus brief in Hunter v District of Columbia, 1:12-cv-01960-GK


https://www.justice.gov/sites/default/files/crt/legacy/2013/08/01/hunteramicus.pdf

6
with retaliation, which is a technically a separate claim.

23. An ADA Title II retaliation claim has three elements: (i) Plaintiff engages in

a protected activity such as suing a state judge for ADA violations, (ii) materially

adverse actions are taken against Plaintiff by other state judges with knowledge

of the lawsuit, and (3) a requisite level of causal connection exists between the

protected activity and the materially adverse action.

24. Mr. Fuller filed a motion to void the bond set by Superior Court Judge

George Bryan Collins, Jr., who Fuller alleged had violated federal disability laws

and engaged in retaliatory acts such as setting a $50,000 secured bond in a

matter of a $1,000 fine on appeal.

25. Mr. Fox did not respond to Mr. Fuller’s request for ADA accommodations

in advance of the February 25, 2019 hearing, during which Fox failed to provide

such accommodations.

26. During the hearing, Fox repeatedly admonished Fuller for interrupting,

expressed anger, and threatened to jail Fuller for contempt. Mr. Fox also denied

all of Mr. Fuller’s requests for relief, failed to provide any legal reasoning,

and refused a request to render written orders so that Fuller could appeal the

adverse decision. To be clear, Mr. Fuller does not seek to gain tactical advantage

in this Court via the motions for relief that have been denied. Rather Mr. Fuller

seeks due process without the specter of conflicts-of-interest in future court

appearances.

27. State judges can be sued by in federal court when violations of federally

protected civil rights are alleged under § 1983. In such disputes, reasonable

7
attorney’s fees may be awarded to the Plaintiff. See Pulliam v. Allen, 466 U.S.
522 (1984).

Relief Sought from Mr. Fox or Court Action


28. Having shown good cause that Mr. Fox should voluntarily recuse himself
from adjudicating this case, he is hereby requested to promptly file written
notice to that effect in this docket, thereby terminating this motion from being
set for a hearing. Otherwise, Petioner requests that the Clerk of Superior
Court schedule this motion for a special hearing with a neutral judge at the
first available opportunity agreeable to all parties, as time is of the essence.
The State is hereby requested to enter a response to this pleading: either “no
objection” or a detailed statement of objections.
29. This voluntary recusal, if issued, would indicate a judgment or conclusion
neither about Mr. Fox’s actions nor Mr. Fuller’s allegations. Mr. Fox will have the
opportunity to defend himself against the federal claims at a future date.
30. Rather, Mr. Fuller’s focus is upon the spirit of the federal law, 28 U.S.
Code § 455, “Any justice [or] judge ... shall disqualify himself in any proceeding
in which his impartiality might reasonably be questioned.“
31. Finally, as to the standard of review in evaluating this pleading, courts
have traditionally afforded some leeway to compensate for self-represented
parties lacking legal training: pro se pleadings are held to “an especially liberal
standard.” See Haines v. Kerner, 404 U.S. 520 (1971) and Melvin Finance, Inc.
v. Artis, 157 N.C. App. 716, 2003 WL 21153426 (N.C. App.) This principal is
especially prescient when evaluating the pleading of a pro se litigant with a

mental disability that impairs behavioral and cognitive function6.

6 Both the United States District Court (E.D.N.C.)8 and the United States Court of Appeals for the 4th
SWORN DECLARATION: I declare under penalty of perjury that the foregoing facts stated in
which I have personal knowledge, are true and correct to the best of my ability. This being
the 24th day of April 2019; a 12-page document submitted by US mail from my home/office in
Wilmington, North Carolina. I received no assistance in editing this pleading or preparing these
legal arguments.

Attached, as a showing of related federal litigation, are three 1-page Exhibits:


A: United States District Court
B: United States Court of Appeals (4th Circuit)
C: United States Supreme Court

NAPIER SANDFORD FULLER


Defendant–Appellant (self-represented)
2201 Lynnwood Drive
Wilmington NC 28403-8026
Post Office Box 7901
Wilmington NC 28406-7901
910.262.2359
napier@alum.mit.edu

CERTIFICATE OF SERVICE
I, the petitioner, NAPIER SANDFORD FULLER, pro se, certify that on the date above, I served a copy of this
pleading upon the opposing party by depositing a copy of same in the United States mail with prepaid, first-class
postage and/or via email. I have been instructed that the following individuals might be the State’s agent, but no order of
representation has been filed in the docket of 17-CRS-050340 and thus such representation is speculative.

Both attorneys named below will also be sued in the forth coming federal litigation for the very same reasons as
described in this motion of disqualification: they participated actively in violations of federal law by ignoring, denying,
discriminating, and or retaliating against Mr. Fuller’s efforts to obtain federally protected disability accommodations as it
relates to equal access to the State Courts of Justice. USDOJ guidelines may it clear that such federal protections, invoked
by defendants, apply equally to prosecutors as agents of the State and immunity has been specifically abrogated by the
US Congress as a result of the State accepting federal funds.

Kimberly Overton Spahos, Bar #28006 Mary C. Babb, Bar #25731


Special Prosecutor NCDOJ Criminal Appeals
PO Box 3159 114 W. Edenton St.,
Cary, NC 27519 Raleigh, NC 27603
kimberly.n.overton@nccourts.org mcbabb@ncdoj.gov
919-270-9403 919-716-6573

The petitioner, NAPIER SANDFORD FULLER, pro se, aver that I have been ordered by this Orange County Superior
Court to (1) never contact the Orange County prosecutors, and to (2) never contact “any judge” in this Orange County
Superior Court by threat of imprisonment of 30 days and/or a loss of a secured bond of $50,000.

I AVER THESE EXCESSIVE POST-CONVICTION BOND CONDITIONS, IN THE APPEAL OF A $1,000 FINE, FURTHER
PREVENT COMMUNICATION AND COMPLIANCE REGARDING MY ADA DISABILITY REQUESTS, ARE THINLY VEILED
ACTS OF RETALIATION FOR FILLING AN ADA LAWSUIT, AND HAVE SUBSEQUENTLY DEPRIVED ME OF FEDERALLY
PROTECTED CONSTITUTIONAL RIGHTS. SUCH ACTS, OMISSIONS, AND FAILURE TO TAKE CORRECTIVE ACTIONS
ARE ACTIONABLE BY FUTURE TORT LITIGATION VIA 42 U.S.C. § 1983-1988. A US DISTRICT COURT RECENTLY
CONCLUDED (SEE PAGE 3-4, DE #70, CASE 7:18-CV-00059-FL) THAT MR. FULLER WAS UNLAWFULLY DENIED
FEDERALLY MANDATED DISABILITY ACCOMMODATIONS IN HIS PRO SE APPEARANCES IN ORANGE COUNTY.

9
Exh
ibi
tA

Case 7:18-cv-00059-FL Document 1 Filed 04/04/18 Page 1 of 18

10
Exh
ibi
tB
USCA4 Appeal: 19-1110 22
Doc: 19 Filed: 04/17/2019
03/19/2019 Pg: 1 of 30
17

No. 19-1110

in the United States Court of Appeals


for the Fourth Circuit

NAPIER SANDFORD FULLER,

Plaintiff-Appellant,

v.

REBECCA W. HOLT, in her official capacity as an employee of the North


Carolina Administrative Office of the Courts; RICHARD A. BADDOUR, in his
official capacity as an employee of the North Carolina Administrative Office
of the Courts; JAMES C. STANFORD, in his official capacity as an employee
of the North Carolina Administrative Office of the Courts; JAMES T. BRYAN,
III, in his official capacity as an employee of the North Carolina Administrative
Office of the Courts; SAMANTHA HYATT CABE, in her official capacity
as an employee of the North Carolina Administrative Office of the Courts;
CATHERINE C. STEVENS, in her official capacity as an employee of the North
Carolina Administrative Office of the Courts,

Defendants-Appellees.

on Appeal from the United States District Court


for the Eastern District of North Carolina

CONSOLIDATED INFORMAL
INFORMAL BRIEF BRIEF
FOR
INFORMAL FOR
THE THE PLAINTIFF-APPELLANT
PLAINTIFF-APPELLANT
APPELLANT BRIEF

N. S. FULLER, pro se
Plaintiff-Appellant
P.O. Box 7091
Wilmington NC 28406-7091
910.262.2359
napier@alum.mit.edu

11
Exh
ibi
tC

12
IN THE SUPERIOR COURT OF NORTH CAROLINA

STATE OF NORTH CAROLINA in Orange County

v.

NAPIER SANDFORD FULLER, No. 17-CRS-050340

Defendant-Appellant, pro se.

MOTION TO REQUEST DISQUALIFICATION

OF RICHARD R. BADDOUR PER NC CODE OF JUDICIAL CONDUCT

TO THE HONORABLE SUPERIOR COURT:

1. The self-represented Defendant-Appellant, Napier Sandford Fuller,

(hereafter referred to as “Mr. Fuller”) respectfully petitions this Superior Court,

pursuant to North Carolina Code of Judicial Conduct (Canon 3, § C), for the

voluntary disqualification of Superior Court Judge Richard R. Baddour from this

case. The case is in the post-conviction phase, and not yet formally docketed

in the North Carolina Appeals Court. Thus, it is still in this court’s jurisdiction

and open to motions for appropriate relief. In support of this motion, Mr. Fuller

shows the following:

2. North Carolina’s Bar’s Rules of Professional Conduct, Rule #8.2, observes

that “unrestrained and intemperate statements [about judicial misconduct] tend


to lessen public confidence in our legal system. Criticisms motivated by reasons

other than a desire to improve the legal system are not justified.”

Legal Reasoning to Request Disqualification of Mr. Baddour

3. Mr. Fuller brings this motion within the following framework: Mr. Fuller

aims to improve our state’s legal system as it relates to the state’s compliance

with federal disability laws.

4. 28 U.S.C. § 455(a) states, “Any justice [or] judge ... shall disqualify himself

in any proceeding in which his impartiality might reasonably be questioned.”


5. North Carolina Code of Judicial Conduct1 (Canon 3, § C) states:
“On motion of any party, a judge should disqualify himself/herself in a
proceeding in which the judge’s impartiality may reasonably be questioned,
including, but not limited to, instances where:
(a) The judge has a personal bias or prejudice concerning a party;
(c) The judge knows that he/she, individually ... has a financial interest in the
subject matter in controversy;
(d) The judge ... (i) Is a party to the proceeding or (iv) Is to the judge’s
knowledge likely to be a [party] in the proceeding.”

6. It is in Canon 3, § C(d)(iv) that Mr. Fuller requests disqualification in

addition the common sense language found in 28 U.S.C. § 455(a).

7. To wit, per Canon 3, § C(c), Mr. Baddour has a financial interest in this

subject matter2, as he is presently a defendant in the subject matter of the


controversy3.

8. Mr. Baddour is employed by the State of North Carolina judiciary (the

N.C.A.O.C.), a unit of the State of North Carolina, in the role of a Superior

Court Judge.
1 Amended by Order of the Supreme Court of North Carolina on November 6, 2015.
2 See discussion of the Civil Rights Attorney’s Fees Awards Act of 1976 as applied in Pulliam v. Allen.
3 See derivative cases: 7:18-cv-00059-FL (EDNC) and USCA4 19-1110.

2
9. The State of North Carolina receives more than $15 billion in federal

funds each year, and it is therefore obligated to create administrative processes

to ensure compliance with federal disability laws in all of its governmental units.

10. Mr. Fuller has asserted that state judges, including Mr. Baddour, have an

administrative function in processing, evaluating, and responding to Mr. Fuller’s

written requests under Title II of the ADA, which is administrative in nature.

11. A USDOJ amicus curiae brief prepared in 1993 in Santiago v. Garcia, 98-

1993 supports this theory. In this dispute, a deaf pro se litigant requested ADA

accommodations from a state judge in order to more effectively participate

in his own trial. Here are some quotes from Santiago that are germane to this

present motion:
Defendants [state judges] have moved to dismiss on several grounds. The
United States as amicus curiae urges the Court to deny the motions as to
plaintiff’s ADA claim, because contrary to the basis on which the Defendants
seek such dismissal:

(i) Plaintiff has pleaded a prima facie case under title II of the ADA.

(ii) Congress has specifically abrogated the States’ eleventh amendment


immunity for suits brought pursuant to the ADA.

(iii) Under title II of the ADA the Defendants can be sued in their official
capacities.

(iv) Judges do not enjoy absolute immunity for acts that are administrative rather
than judicial in nature.

Based on the language of the ADA, Defendants’ [immunity] argument is


without merit. In the ADA, Congress expressly abrogated the States’ eleventh
amendment immunity.

Given the abrogation of state immunity by the ADA, claims can be brought
against a state judge in his/her individual or official capacity under the ADA but
for the doctrine of judicial immunity.

In its enforcement of the ADA, the United States has seen that [state] courts
establish system-wide administrative policies and leave the task of processing
individual requests to system-wide administrators rather than individual judges.
This court should not dismiss [state judges] from the case before plaintiff has an
opportunity to prove that the Judge acted administratively, not judicially, when

3
refusing plaintiff’s [ADA request].

For the foregoing reasons, the United States respectfully requests that this court
deny Defendants’ motions to dismiss.

The salient point from Santiago is that the process of receiving, evaluating,

and complying with ADA requests for access to government services is

administrative: state courts of justice are no exception.


12. Disputes of ADA in terms of access to state courts are resolved in federal

courts. Specifically, an opinion by Justice John Paul Stevens in Tennessee v.


Lane, 541 U.S. 509 (2004) is worth exploring. Justice Stevens’ lengthy analysis

found that immunity defenses do not apply when a qualified disabled party is

prevented from having equal access to the state court system itself.

13. In Lane, the U.S. Supreme Court recounted congressional studies showing

systemic violations of the fundamental constitutional rights of the disabled by

state courts that have persisted long after the ADA was passed. Here are some

quotes from Lane that are germane to Mr. Fuller’s complaint:


The unequal treatment of disabled persons in the administration of judicial
services has a long history, and has persisted despite several legislative efforts
to remedy the problem of disability discrimination. Faced with considerable
evidence of the shortcomings of previous legislative responses, Congress was
justified in concluding that this “difficult and intractable probable[m]” warranted
“added prophylactic measures in response.” Hibbs, 538 U. S., at 737 (internal
quotation marks omitted).

Recognizing that failure to accommodate persons with disabilities will often


have the same practical effect as outright exclusion, Congress required
the States to take reasonable measures ... It requires only “reasonable
modifications” that would not fundamentally alter the nature of the service
provided, and only when the individual seeking modification is otherwise eligible
for the service.

This duty to accommodate is perfectly consistent with the well-established due


process principle that, “within the limits of practicability, a State must afford to
all individuals a meaningful opportunity to be heard” in its courts. Boddie, 401 U.
S., at 379.

4
Mr. Baddour Involved in a Federal Legal Controversy
14. On April 4, 2018, Mr. Fuller filed an 18-page federal complaint against six
judicial officials employed by the State of North Carolina:
Defendant Rebecca W. Holt superior court judge
Defendant Richard A. Baddour superior court judge
Defendant James C. Stanford clerk of court
Defendant James T. Bryan, III district court judge
Defendant Samantha Hyatt Cabe district court judge
Defendant Catherine C. Stevens emergency district court judge

15. Mr. Fuller made the following claims in his initial complaint:

“Defendants past and current discrimination against Plaintiff violates Title II of


Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101, and the Federal
regulations promulgated pursuant to the Act at 28 C.F.R. Part 35 et seq.
“Plaintiff avers retaliation and vindictiveness in conduct of Defendants. Plaintiff has
hours of audio recordings of his court appearances and many emails as evidence
for the court to consider.”

16. On August 9, 2018, Mr. Fuller, a self-represented defendant, was convicted

of a single misdemeanor, Cyberstalking § 14-196.3(b)(2), after a chaotic jury trial in

Orange County, NC, presided over by Superior Court Judge George Bryan Collins,

Jr., who later set a $50,000 secured bond in abstenia in the $1,000 fine on appeal.
17. According to the NIH4, Fuller’s mental disorder manifests as oscillating

patterns between being too withdrawn and being too intrusive. The key concepts

are as follows:

“Symptoms of the withdrawn phase include: problems sustaining attention in


conversations, not following instructions, being distracted by unrelated thoughts.”

“Symptoms of the intrusive phase include: talking nonstop, interrupting or


intruding in conversations, constant moving about, and aggressive behaviors that
have high potential for harm.”

4 https://www.nimh.nih.gov/health/topics/attention-deficit-hyperactivity-disorder-adhd/index.shtml

5
“These problems are not due to defiance or lack of comprehension.”

18. On November 20, 2018, Mr. Fuller’s federal lawsuit against Orange County

judicial officials was dismissed with prejudice, based upon two technicalities

related to immunity. The legal question was one of relief, as the Defendants’

claimed two forms of immunity: judicial and sovereign. However, the undisputed

facts, as summarized by Judge Louise Flanigan, make it quite clear that Mr. Fuller’s

federal rights had indeed been violated by the State of North Carolina in the

prosecution of case 17-CRS-050340.

19. Title II of the ADA, provides that, “no qualified individual with a disability

shall, by reason of such disability, be excluded from participation in or be denied

the benefits of the services, programs, or activities of a public entity, or be

subjected to discrimination by any such entity.” See 42 U.S.C. § 12132.

20. Quoting from a recent USDOJ amicus brief, the United States argued that

“to state a claim under title II of the ADA, a plaintiff must prove three elements:

(i) that he is a qualified individual with a disability, (ii) that he was discriminated

against by being excluded from or denied the benefits of a public entity’s

services, and (iii) that he was discriminated against because of his disability.

21. Mr. Fuller has sued Mr. Baddour in federal court, alleging ADA retaliation,

which is technically a separate claim that survives even the underlying claims.

22. An ADA Title II retaliation claim has three elements: (i) Plaintiff engages in

a protected activity such as suing a state judge for ADA violations, (ii) materially

adverse actions are taken against Plaintiff by other state judges with knowledge

of the lawsuit, and (3) a requisite level of causal connection exists between the

protected activity and the materially adverse action.

6
23. To be clear, Mr. Fuller does not seek to gain tactical advantage in this

Court via Mr. Baddour’s disqualification. Rather Mr. Fuller seeks due process

without the specter of conflicts-of-interest in future court appearances.

24. State judges can be sued in federal court when violations of federally

protected civil rights are alleged under § 1983. In such disputes, reasonable

attorney’s fees may be awarded to the Plaintiff. See Pulliam v. Allen, 466 U.S.

522 (1984).

Relief Sought from Mr. Baddour (or Court Hearing)


25. Having shown good cause that Mr. Baddour should voluntarily recuse

himself from adjudicating this case in post-conviction motions, he is hereby

requested to promptly file written notice to that effect in this docket, thereby

terminating this motion from being set for a hearing. Otherwise, Petioner

requests that the Clerk of Superior Court schedule this motion for a special

hearing with a neutral judge at the first available opportunity agreeable to

all parties, as time is of the essence. The State is hereby requested to enter

a response to this pleading: either “no objection” or a detailed statement of

objections.

26. This voluntary disqualification, if issued, would indicate a judgment

or conclusion neither about Mr. Baddour’s actions nor Mr. Fuller’s pending

lawsuit(s). Rather, Mr. Fuller’s focus is upon the spirit of the federal law, 28

U.S.C. § 455, “Any justice [or] judge ... shall disqualify himself in any proceeding

in which his impartiality might reasonably be questioned.“

27. Finally, as to the standard of review in evaluating this pleading, courts

7
have traditionally afforded some leeway to compensate for self-represented

parties lacking legal training: pro se pleadings are held to “an especially liberal

standard.” See Haines v. Kerner, 404 U.S. 520 (1971) and Melvin Finance, Inc.

v. Artis, 157 N.C. App. 716, 2003 WL 21153426 (N.C. App.) This principal is

especially prescient when evaluating the pleading of a pro se litigant with a

mental disability that impairs behavioral and cognitive function5.

SWORN DECLARATION: I declare under penalty of perjury that the foregoing facts

stated in which I have personal knowledge, are true and correct to the best of my ability.

This being the 24th day of April 2019; a 12-page document submitted by US mail from

my home/office in Wilmington, North Carolina. I received no assistance in editing this

pleading or preparing these legal arguments.

blank

5 Both the United States District Court (E.D.N.C.) and the United States Court of Appeals for the 4th
Circuit have issued orders in 2019 that Mr. Fuller is to receive federal disability accommodations in terms of
court interactions regarding his mental disability in the interest of justice.

8
Attached, as a good showing of related federal litigation, are three 1-page Exhibits:
A: United States District Court
B: United States Court of Appeals (4th Circuit)
C: United States Supreme Court

NAPIER SANDFORD FULLER


Defendant–Appellant (self-represented)
2201 Lynnwood Drive
Wilmington NC 28403-8026
Post Office Box 7901
Wilmington NC 28406-7901
910.262.2359
napier@alum.mit.edu

CERTIFICATE OF SERVICE
I, the petitioner, NAPIER SANDFORD FULLER, pro se, certify that on the date above, I served a copy of this
pleading upon the opposing party by depositing a copy of same in the United States mail with prepaid, first-class
postage and/or via email. I have been instructed that the following individuals might be the State’s agent, but no order of
representation has been filed in the docket of 17-CRS-050340 and thus such representation is speculative.

Both attorneys named below will also be sued in the forth coming federal litigation for the very same reasons as
described in this motion of disqualification: they participated actively in violations of federal law by ignoring, denying,
discriminating, and or retaliating against Mr. Fuller’s efforts to obtain federally protected disability accommodations as it
relates to equal access to the State Courts of Justice. USDOJ guidelines may it clear that such federal protections, invoked
by defendants, apply equally to prosecutors as agents of the State and immunity has been specifically abrogated by the
US Congress as a result of the State accepting federal funds.

Kimberly Overton Spahos, Bar #28006 Mary C. Babb, Bar #25731


Special Prosecutor NCDOJ Criminal Appeals
PO Box 3159 114 W. Edenton St.,
Cary, NC 27519 Raleigh, NC 27603
kimberly.n.overton@nccourts.org mcbabb@ncdoj.gov
919-270-9403 919-716-6573

The petitioner, NAPIER SANDFORD FULLER, pro se, aver that I have been ordered by this Orange County Superior
Court to (1) never contact the Orange County prosecutors, and to (2) never contact “any judge” in this Orange County
Superior Court by threat of imprisonment of 30 days and/or a loss of a secured bond of $50,000.

I AVER THESE EXCESSIVE POST-CONVICTION BOND CONDITIONS, IN THE APPEAL OF A $1,000 FINE, FURTHER
PREVENT COMMUNICATION AND COMPLIANCE REGARDING MY ADA DISABILITY REQUESTS, ARE THINLY VEILED
ACTS OF RETALIATION FOR FILLING AN ADA LAWSUIT, AND HAVE SUBSEQUENTLY DEPRIVED ME OF FEDERALLY
PROTECTED CONSTITUTIONAL RIGHTS. SUCH ACTS, OMISSIONS, AND FAILURE TO TAKE CORRECTIVE ACTIONS
ARE ACTIONABLE BY FUTURE TORT LITIGATION VIA 42 U.S.C. § 1983-1988. A US DISTRICT COURT RECENTLY
CONCLUDED (SEE PAGE 3-4, DE #70, CASE 7:18-CV-00059-FL) THAT MR. FULLER WAS UNLAWFULLY DENIED
FEDERALLY MANDATED DISABILITY ACCOMMODATIONS IN HIS PRO SE APPEARANCES IN ORANGE COUNTY.

9
Exh
ibi
tA

Case 7:18-cv-00059-FL Document 1 Filed 04/04/18 Page 1 of 18

10
Exh
ibi
tB
USCA4 Appeal: 19-1110 22
Doc: 19 Filed: 04/17/2019
03/19/2019 Pg: 1 of 30
17

No. 19-1110

in the United States Court of Appeals


for the Fourth Circuit

NAPIER SANDFORD FULLER,

Plaintiff-Appellant,

v.

REBECCA W. HOLT, in her official capacity as an employee of the North


Carolina Administrative Office of the Courts; RICHARD A. BADDOUR, in his
official capacity as an employee of the North Carolina Administrative Office
of the Courts; JAMES C. STANFORD, in his official capacity as an employee
of the North Carolina Administrative Office of the Courts; JAMES T. BRYAN,
III, in his official capacity as an employee of the North Carolina Administrative
Office of the Courts; SAMANTHA HYATT CABE, in her official capacity
as an employee of the North Carolina Administrative Office of the Courts;
CATHERINE C. STEVENS, in her official capacity as an employee of the North
Carolina Administrative Office of the Courts,

Defendants-Appellees.

on Appeal from the United States District Court


for the Eastern District of North Carolina

CONSOLIDATED INFORMAL
INFORMAL BRIEF BRIEF
FOR
INFORMAL FOR
THE THE PLAINTIFF-APPELLANT
PLAINTIFF-APPELLANT
APPELLANT BRIEF

N. S. FULLER, pro se
Plaintiff-Appellant
P.O. Box 7091
Wilmington NC 28406-7091
910.262.2359
napier@alum.mit.edu

11
Exh
ibi
tC

12
IN THE SUPERIOR COURT OF NORTH CAROLINA

STATE OF NORTH CAROLINA in Orange County

v.

NAPIER SANDFORD FULLER, No. 17-CRS-050340

Defendant-Appellant, pro se.

MOTION FOR APPROPRIATE RELIEF #1


PER N.C. GEN. STAT. § 15A-1415(b)(4) et seq.

TO THE HONORABLE SUPERIOR COURT:

1. The self-represented Defendant-Appellant, Napier Sandford Fuller,

(hereafter referred to as “Mr. Fuller”) respectfully petitions that the Superior

Court, pursuant to N.C. Gen. Stat. § 15A-1415, for his conviction on August 9,

2018 in the Superior Court of Orange County to be vacated and the charge

dismissed without leave to refile. This case is in the post-conviction phase, and

not yet formally docketed in the North Carolina Appeals Court. Thus, it is still

in this court’s jurisdiction and open to motions for appropriate relief. In support

of this motion, Mr. Fuller shows the following:

2. An entry into the UNC-CH School of Government website, “Relief from a

Criminal Conviction (2018 edition)” can be linked at the following URL:


https://www.sog.unc.edu/resources/microsites/relief-criminal-conviction/motions-appropriate-relief

3. Key quotes are as follows related to N.C. Gen. Stat. § 15A-1415:


“A motion for appropriate relief (MAR) is a motion made after judgment to
correct any errors that occurred before, during, or after a criminal trial...
MAR[s] is governed by N.C. Gen. Stat. § 15A-1415 and generally may be
filed at any time after judgment. A person may base this type of MAR on the
grounds identified in N.C. Gen. Stat. § 15A-1415—for example, that the trial
court lacked subject matter jurisdiction over the case or that the conviction
was obtained in violation of the state or federal constitution.
Recent amendments to the MAR statutes may have broadened the ability to
obtain relief. In S.L. 2012-168 (S 141), the General Assembly amended the
statutes to add procedures for assigning MARs to judges and set timelines for
hearing MARs. As part of these changes, the General Assembly added N.C.
Gen. Stat. § 15A-1420(e), which states: “Nothing in this section shall prevent
the parties to the action from entering into an agreement for appropriate
relief, including an agreement as to any aspect, procedural or otherwise, of
a motion for appropriate relief.” In 2013, the General Assembly repealed the
timelines but maintained the other changes. S.L. 2013-385 (S 182). By enacting
and thereafter retaining N.C. Gen. Stat. § 15A-1420(e), the General Assembly
appears to have authorized the court to grant a M.A.R. if the State and
defendant consent.
N.C. Gen. Stat. § 15A-1417 describes the relief available when a court grants
a motion for appropriate relief, including vacating of a conviction. An order
vacating a conviction does not necessarily terminate the criminal case; the
State may retry the defendant unless, in addition to vacating the conviction,
the court enters an order dismissing the charges.”

4. N.C. Gen. Stat. § 15A-1415 states, “the defendant may assert by a motion

for appropriate relief made more than 10 days after entry of judgment [if] the

defendant was convicted or sentenced under a statute that was in violation of

the Constitution of the United States or the Constitution of North Carolina.”

5. Mr. Fuller now moves to have his conviction vacated and the charge

dismissed without leave to refile in consideration of whatever relief is just and

proper via N.C. Gen. Stat. § 15A-1411(c), so long as Mr. Fuller is regarded as

obtaining “termination” of the proceedings in his favor.

2
6. Mr. Fuller argues that per N.C. Gen. Stat. § 15A-1415(b)(4), the statute

used to convict, N.C. Gen. Stat. §14-196.3(b)(2), is unconstitutionally broad and

outlaws many types of speech protected under the First Amendment of the

United States Constitution, as well the Constitution of North Carolina, Article I,

Sections 1, 13, 14, 19, and 36.

7. Specifically, N.C. Gen. Stat. §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. N.C. Gen. Stat. §14-196.3(b)(2) “fails

to give ordinary people fair notice of the activity that it punishes,” and is “so

standardless that it invites arbitrary enforcement,” Kolender v. Lawson, 461

U.S. 352, 357 (1983), and 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.

8. N.C. Gen. Stat. §14-196.3(b)(2) reads as follows:


“(b) 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.”

9. Mr. Fuller’s warrant for arrest reads in its entirety as follows:

3
“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.”

10. WHEREFORE, Mr. Fuller respectfully moves the Court for any and

all relief possible as the criminal statute under which he is convicted is

unconstitutionally vague, overbroad and violative of state and federal

constitutional rights. Mr. Fuller moves this court to schedule the matter for a

hearing as soon as possible, time being of the essence.

11. Because of the closely related arguments, Mr. Fuller requests the

Memorandum of Law in both M.A.R. #1 and #2 be considered.

12. As to the standard of review in evaluating this pleading, courts have

traditionally afforded some leeway to compensate for self-represented parties

lacking legal training: pro se pleadings are held to “an especially liberal

standard.” See Haines v. Kerner, 404 U.S. 520 (1971) and Melvin Finance, Inc.

v. Artis, 157 N.C. App. 716, 2003 WL 21153426 (N.C. App.) This principal is

especially prescient when evaluating the pleading of a pro se litigant with a

mental disability that impairs behavioral and cognitive function1.

13. SWORN DECLARATION: I declare under penalty of perjury that the

foregoing facts stated in which I have personal knowledge, are true and

correct to the best of my ability.

1 Both the United States District Court (E.D.N.C.) and the United States Court of Appeals for the 4th
Circuit have issued orders in 2019 that Mr. Fuller is to receive federal disability accommodations in terms of
court interactions regarding his mental disability in the interest of justice.

4
This 24nd Day of April 2019

NAPIER SANDFORD FULLER


Defendant–Appellant (self-represented)
2201 Lynnwood Drive
Wilmington NC 28403-8026
Post Office Box 7901
Wilmington NC 28406-7901
910.262.2359
napier@alum.mit.edu

CERTIFICATE OF SERVICE
I, the petitioner, NAPIER SANDFORD FULLER, pro se, certify that on the date above, I served a copy of this
pleading upon the opposing party by depositing a copy of same in the United States mail with prepaid, first-class
postage and/or via email. I have been instructed that the following individuals might be the State’s agent, but no order of
representation has been filed in the docket of 17-CRS-050340 and thus such representation is speculative.

Kimberly Overton Spahos, Bar #28006 Mary C. Babb, Bar #25731


Special Prosecutor NCDOJ Criminal Appeals
PO Box 3159 114 W. Edenton St.,
Cary, NC 27519 Raleigh, NC 27603
kimberly.n.overton@nccourts.org mcbabb@ncdoj.gov
919-270-9403 919-716-6573

The petitioner, NAPIER SANDFORD FULLER, pro se, aver that I have been ordered by this Orange County Superior
Court to (1) never contact the Orange County prosecutors, and to (2) never contact “Judge Fox” in this Orange County
Superior Court by threat of imprisonment of 30 days and/or a loss of a secured bond of $50,000.

I AVER THESE EXCESSIVE POST-CONVICTION BOND CONDITIONS, IN THE APPEAL OF A $1,000 FINE, FURTHER
PREVENT COMMUNICATION AND COMPLIANCE REGARDING MY ADA DISABILITY REQUESTS, ARE THINLY VEILED
ACTS OF RETALIATION FOR FILLING AN ADA LAWSUIT, AND HAVE SUBSEQUENTLY DEPRIVED ME OF FEDERALLY
PROTECTED CONSTITUTIONAL RIGHTS.

5
IN THE SUPERIOR COURT OF NORTH CAROLINA

STATE OF NORTH CAROLINA in Orange County

v.

NAPIER SANDFORD FULLER, No. 17-CRS-050340

Defendant-Appellant, pro se.

MEMORANDUM OF LAW IN SUPPORT OF


MOTION FOR APPROPRIATE RELIEF #1
PER N.C. GEN. STAT. § 15A-1415(b)(4) et seq.

1. This Memorandum of Law is submitted to the Court in support of Mr.

Fuller’s M.A.R. to vacate his recent conviction of “Harassing Communications”

under N.C. Gen. Stat. § 14-196.3(b)(2), being obtained on August 9, 2018.

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
unconstitutional.

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 facially unconstitutional.
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
III government
As drafted,interest and, as §14-196.3(b)(2)
N.C.G.S.A. a result, the statute is both
violates thefacially unconstitutional and
First Amendment
to unconstitutional
the United StatesasConstitution
applied to Mr. Fuller.the statute is an impermissible
because
content-based restriction on protected speech that is not narrowly tailored
IV.to Pursuant
achieve a to
compelling
N.C.G.S.A.government
§14-196.3(e), interest
any andand,
allas a result, the statute
communications, is
electronic or
facially unconstitutional.
otherwise, at issue in this case are considered “peaceable, nonviolent, or
IV nonthreatening
Pursuant toactivity
N.C.G.S.A. §14-196.3(e),
intended to expressany and allviews
political communications,
or to provide lawful
electronic or otherwise, at issue in this case are considered “peaceable,
information to others” and as a result N.C.G.S.A. §14-196.3 is not applicable, and
nonviolent, or nonthreatening
furthermore, activity intended
any and all communications to express
at issue in this political views
case are considered
or “constitutionally
to provide lawfulprotected
information to others”
activity, and speech,
including “constitutionally
protest, orprotected
assembly,” and
activity, including speech, protest, or assembly,” are excluded
therefore N.C.G.S.A. §14-196.3 “shall not be construed to impair” such yet requires
a continstitutional analysis typically reserved for the courts of ultimate
communication.
recourse: the US Supreme Court or the North Carolina Supreme Court.
Hence, defense against a conviction is nearly impossible as no right exists
to obtain review by these courts: it is discretionary via Writ of Certiorari.
I. Lower
As drafted, N.C.G.S.A.
Courts are §14-196.3(b)(2)
encouraged is unconstitutionally
to avoid making vague such that men of
constitutional findings
making it very difficult if not impossible to obtain a speedy trialand
common intelligence must necessarily guess as to its meaning anddiffer
due as to its
application
process reviewbecause the statute (1) fails to give ordinary people fair notice of the
of a conviction.
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
2
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.)

4
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:

9
“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).

21
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)

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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

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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

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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)

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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

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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)…

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(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.

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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,

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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.

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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

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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

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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);

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(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,

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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

42
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

44
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.

48
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.

49
IN THE SUPERIOR COURT OF NORTH CAROLINA

STATE OF NORTH CAROLINA in Orange County

v.

NAPIER SANDFORD FULLER, No. 17-CRS-050340

Defendant-Appellant, pro se.

MOTION FOR APPROPRIATE RELIEF #2 RE: CONDUCT


PER N.C. GEN. STAT. § 15A-1415(b)(5) et seq.

TO THE HONORABLE SUPERIOR COURT:

1. The self-represented Defendant-Appellant, Napier Sandford Fuller,

(hereafter referred to as “Mr. Fuller”) respectfully petitions that the Superior

Court, pursuant to N.C. Gen. Stat. § 15A-1415: to vacate his conviction on

August 9, 2018 in the Superior Court of Orange County. This case is in the

post-conviction phase, and not yet formally docketed in the North Carolina

Appeals Court. Thus, it is still in this court’s jurisdiction to consider motions for

appropriate relief. In support of this motion, Mr. Fuller shows the following:

2. An entry into the UNC-CH School of Government website, “Relief from a

Criminal Conviction (2018 edition)” can be linked at the following URL:

https://www.sog.unc.edu/resources/microsites/relief-criminal-conviction/motions-appropriate-relief
3. Key quotes are as follows related to N.C. Gen. Stat. § 15A-1415:
“A motion for appropriate relief (MAR) is a motion made after judgment to
correct any errors that occurred before, during, or after a criminal trial...
MAR[s] is governed by N.C. Gen. Stat. § 15A-1415 and generally may be
filed at any time after judgment. A person may base this type of MAR on the
grounds identified in N.C. Gen. Stat. § 15A-1415—for example, that the trial
court lacked subject matter jurisdiction over the case or that the conviction
was obtained in violation of the state or federal constitution.
Recent amendments to the MAR statutes may have broadened the ability to
obtain relief. In S.L. 2012-168 (S 141), the General Assembly amended the
statutes to add procedures for assigning MARs to judges and set timelines for
hearing MARs. As part of these changes, the General Assembly added N.C.
Gen. Stat. § 15A-1420(e), which states: “Nothing in this section shall prevent
the parties to the action from entering into an agreement for appropriate
relief, including an agreement as to any aspect, procedural or otherwise, of
a motion for appropriate relief.” In 2013, the General Assembly repealed the
timelines but maintained the other changes. S.L. 2013-385 (S 182). By enacting
and thereafter retaining N.C. Gen. Stat. § 15A-1420(e), the General Assembly
appears to have authorized the court to grant a M.A.R. if the State and
defendant consent.
N.C. Gen. Stat. § 15A-1417 describes the relief available when a court grants
a motion for appropriate relief, including vacating of a conviction. An order
vacating a conviction does not necessarily terminate the criminal case; the
State may retry the defendant unless, in addition to vacating the conviction,
the court enters an order dismissing the charges.”

4. N.C. Gen. Stat. § 15A-1415(b)(5) states, “the defendant may assert by a

motion for appropriate relief made more than 10 days after entry of judgment

[if] the conduct for which the defendant was prosecuted was protected by the

Constitution of the United States or the Constitution of North Carolina..”

5. Mr. Fuller moves to have his conviction vacated and the charge dismissed

without leave to refile, or whatever is just and proper relief this Court may offer

via N.C. Gen. Stat. § 15A-1411(c), so long as Mr. Fuller obtains a “termination”

of the proceedings in his favor.

6. Mr. Fuller argues that N.C. Gen. Stat. § 15A-1415(b)(5) applies, in that

2
the conduct referenced to convict Mr. Fuller, 12 emails violating N.C. Gen.

Stat. §14-196.3(b)(2), is an unconstitutionally limit on protected conduct (i.e.,

free speech and religious expressions) under the First Amendment of the

United States Constitution, as well the Constitution of North Carolina, Article I,

Sections 1, 13, 14, 19, and 36.

7. N.C. Gen. Stat. §14-196.3(b)(2) reads as follows:


“(b) 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.”

8. Mr. Fuller’s warrant for arrest 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.”

9. WHEREFORE, for the reasons set out in the accompanying Memorandum

of Law, Mr. Fuller respectfully moves the Court for any and all relief possible.
Mr. Fuller moves this court to schedule the matter for a hearing as soon as

possible, time being of the essence.

10. Because this M.A.R. #2 is very similar to M.A.R. #1 filed

contemporaneously — an “as applied” challenge as opposed to a facial

challenge — some legal scholars holding that the two arguments are actually

the same, albeit on a macro v. mirco scale — Mr. Fuller hereby incorporates the

Memorandum of Law in M.A.R. #1 as a supplement to this M.A.R. #2.

3
11. As to the standard of review in evaluating this pleading, courts have

traditionally afforded leeway to compensate for self-represented parties lacking

legal training: pro se pleadings are held to “an especially liberal standard.” See

Haines v. Kerner, 404 U.S. 520 (1971) and Melvin Finance, Inc. v. Artis, 157

N.C. App. 716, 2003 WL 21153426 (N.C. App.) This principal is especially

prescient when evaluating the pleading of a pro se litigant with a mental

disability that impairs behavioral and cognitive function1.

12. SWORN DECLARATION: I declare under penalty of perjury that the

foregoing facts stated in which I have personal knowledge, are true and

correct to the best of my ability.

blank

1 Both the United States District Court (E.D.N.C.) and the United States Court of Appeals for the 4th
Circuit have issued orders in 2019 that Mr. Fuller is to receive federal disability accommodations in terms of
court interactions regarding his mental disability in the interest of justice.

4
This 24nd Day of April 2019

NAPIER SANDFORD FULLER


Defendant–Appellant (self-represented)
2201 Lynnwood Drive
Wilmington NC 28403-8026
Post Office Box 7901
Wilmington NC 28406-7901
910.262.2359
napier@alum.mit.edu

CERTIFICATE OF SERVICE
I, the petitioner, NAPIER SANDFORD FULLER, pro se, certify that on the date above, I served a copy of this
pleading upon the opposing party by depositing a copy of same in the United States mail with prepaid, first-class
postage and/or via email. I have been instructed that the following individuals might be the State’s agent, but no order of
representation has been filed in the docket of 17-CRS-050340 and thus such representation is speculative.

Kimberly Overton Spahos, Bar #28006 Mary C. Babb, Bar #25731


Special Prosecutor NCDOJ Criminal Appeals
PO Box 3159 114 W. Edenton St.,
Cary, NC 27519 Raleigh, NC 27603
kimberly.n.overton@nccourts.org mcbabb@ncdoj.gov
919-270-9403 919-716-6573

The petitioner, NAPIER SANDFORD FULLER, pro se, aver that I have been ordered by this Orange County Superior
Court to (1) never contact the Orange County prosecutors, and to (2) never contact “Judge Fox” in this Orange County
Superior Court by threat of imprisonment of 30 days and/or a loss of a secured bond of $50,000.

I AVER THESE EXCESSIVE POST-CONVICTION BOND CONDITIONS, IN THE APPEAL OF A $1,000 FINE, FURTHER
PREVENT COMMUNICATION AND COMPLIANCE REGARDING MY ADA DISABILITY REQUESTS, ARE THINLY VEILED
ACTS OF RETALIATION FOR FILLING AN ADA LAWSUIT, AND HAVE SUBSEQUENTLY DEPRIVED ME OF FEDERALLY
PROTECTED CONSTITUTIONAL RIGHTS.

5
IN THE SUPERIOR COURT OF NORTH CAROLINA

STATE OF NORTH CAROLINA in Orange County

v.

NAPIER SANDFORD FULLER, No. 17-CRS-050340

Defendant-Appellant, pro se.

MEMORANDUM OF LAW IN SUPPORT OF


MOTION FOR APPROPRIATE RELIEF #2 RE: CONDUCT
PER N.C. GEN. STAT. § 15A-1415(b)(5) et seq.

This Memorandum of Law is submitted to the Court in support

of Mr. Fuller’s M.A.R. #2 to vacate his recent conviction of “Harassing

Communications” under N.C. Gen. Stat. § 14-196.3(b)(2), being obtained on


August 9, 2018 in Orange County.

As to the standard of review in evaluating this pleading, courts have

traditionally afforded leeway to compensate for self-represented parties lacking

legal training: pro se pleadings are held to “an especially liberal standard.” See

Haines v. Kerner, 404 U.S. 520 (1971) and Melvin Finance, Inc. v. Artis, 157

N.C. App. 716, 2003 WL 21153426 (N.C. App.) This principal is especially

prescient when evaluating the pleading of a pro se litigant with a mental

disability that impairs behavioral and cognitive function1.


1 Both the United States District Court (E.D.N.C.) and the United States Court of Appeals for the 4th
Circuit have issued orders in 2019 that Mr. Fuller is to receive federal disability accommodations in terms of
court interactions regarding his mental disability in the interest of justice.
This 24nd Day of April 2019

NAPIER SANDFORD FULLER


Defendant–Appellant (self-represented)
2201 Lynnwood Drive
Wilmington NC 28403-8026
Post Office Box 7901
Wilmington NC 28406-7901
910.262.2359
napier@alum.mit.edu

CERTIFICATE OF SERVICE
I, the petitioner, NAPIER SANDFORD FULLER, pro se, certify that on the date above, I served a copy of this
pleading upon the opposing party by depositing a copy of same in the United States mail with prepaid, first-class
postage and/or via email. I have been instructed that the following individuals might be the State’s agent, but no order of
representation has been filed in the docket of 17-CRS-050340 and thus such representation is speculative.

Kimberly Overton Spahos, Bar #28006 Mary C. Babb, Bar #25731


Special Prosecutor NCDOJ Criminal Appeals
PO Box 3159 114 W. Edenton St.,
Cary, NC 27519 Raleigh, NC 27603
kimberly.n.overton@nccourts.org mcbabb@ncdoj.gov
919-270-9403 919-716-6573

The petitioner, NAPIER SANDFORD FULLER, pro se, aver that I have been ordered by this Orange County Superior
Court to (1) never contact the Orange County prosecutors, and to (2) never contact “Judge Fox” in this Orange County
Superior Court by threat of imprisonment of 30 days and/or a loss of a secured bond of $50,000.

I AVER THESE EXCESSIVE POST-CONVICTION BOND CONDITIONS, IN THE APPEAL OF A $1,000 FINE, FURTHER
PREVENT COMMUNICATION AND COMPLIANCE REGARDING MY ADA DISABILITY REQUESTS, ARE THINLY VEILED
ACTS OF RETALIATION FOR FILLING AN ADA LAWSUIT, AND HAVE SUBSEQUENTLY DEPRIVED ME OF FEDERALLY
PROTECTED CONSTITUTIONAL RIGHTS.

2
FREE SPEECH AS APPLIED TO MR. FULLER’S CASE

1. Mr. Fuller has been in contact with Prof. Eugene Volokr of UCLA

School of Law regarding this case numerous times starting in 2017: Volokr

is not representing Mr. Fuller, but has provided some “legal information”

germane to Mr. Fuller’s pro se representation.

2. Because the American legal tradition is deferential to previous

adjudications’ binding case law, Mr. Fuller draws heavily from three of

Volokr’s recent works: an essay in the Washington Post1 and two recent

amicus curiae briefs in North Carolina2 and Washington State that interfered

with protected free speech. Much of the following is quoted directly from

Volokr’s works.

N.C. Gen. Stat. § 14-196.3(b)(2) states:

“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.”

As Mr. Fuller’s arrest warrant and evidence clearly shows, the N.C. Gen. Stat.
§ 14-196.3(b)(2) was applied in a more concise manner by UNC-CH Police:

“It is unlawful for Mr. Fuller to have electronically communicated for the
purpose of annoying and embarrassing a UNC-CH professor, Ms. Zerden,
via her government email address.”

Summary of Argument

3. Emails that may be regarded as “abusing, annoying, threatening,


1 Volokr, Eugene. “No, there’s no ‘hate speech’ exception to the First
Amendment,” Washington Post (May 7, 2015).
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/05/07/no-theres-no-hate-speech-exception-to-the-first-amendment/
2
3
terrifying, harassing, or embarrassing” to government employees’ official

email address about matters of public debate are 100% protected by the First

Amendment (at least setting aside “threatening” and “harassing“ in the sense

of criminal case-law as opposed to feelings). Anyone can feel threatened

over just about anything: it merely indicates the possibility of a future adverse

action perceived in the present. Likewise, “harassment” means some form of

pressure perceived as intense.

4. To the extent that N.C. Gen. Stat. § 14-196.3(b)(2) criminalizes such

intent to contact government employees via email, such a criminal law is

unconstitutionally as applied to all 12 emails regarded as being sent from

Mr. Fuller to Ms. Zerden (“The Email Evidence3”) present by the State in it’s

criminal prosecution, 17-CRS-050340.

5. Indeed, in the leading case on this subject, the D.C. Circuit overturned

a telephone harassment conviction for calling the office of a U.S. Attorney

seven times and calling him a “whore, born by the son of a negro whore.”

United States v. Popa, 187 F.3d 672 (D.C. Cir. 1999).

6. Similarly, the Ninth Circuit has set aside a conviction for saying “fuck

you” to a law enforcement officer, even though face-to-face vulgar insults are,

if anything, even more offensive than similar insults in emails. United States v.

Poocha, 259 F.3d 1077, 1082 (9th Cir. 2001).

7. The government may limit offensive phone calls to people’s homes.

But, as these cases make clear, it may not apply such restrictions to speech to

the government employees on their official email accounts.


3 Mr. Fuller does not admit to the evidence regarding the 12 the messages yet for this legal argument
this is irrelevant.
4
Purpose-based restriction on Mr. Fuller’s Speech

8. N.C. Gen. Stat. § 14-196.3(b)(2) states “It is unlawful for a person to

electronically communicate for the purpose of...” The language of N.C. Gen.

Stat. § 14-196.3(b)(2) is thus, on its face, about the purpose of the content

of an email, and thus the law “cannot be justified without reference to the

content of the regulated speech,” Reed v. Town of Gilbert, 135 S. Ct. 2218,

2227 (2015).

9. This law, N.C. Gen. Stat. § 14-196.3(b)(2), thus “restricts speech, not

merely non-expressive conduct; that this restriction is content based, not

content neutral; and that the cyberbullying statute is not narrowly tailored to

the State’s asserted interest in protecting children from the harms of online

bullying. [We] hold that the statute violates the First Amendment,” State v.

Bishop, (2016). Here are key quotes from the NC Supreme Court decision in

the Bishop case:

“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—such as those governing only the
time, manner, or place of First Amendment-protected expression—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.”
The principal inquiry in determining content neutrality . . . is whether the
government has adopted a regulation of speech because of disagreement
with the message it conveys.
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. Regarding motive,

5
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...
The description of the proscribed subject matter is similarly expansive.
Such an interpretation would essentially criminalize posting any information
about any specific minor if done with the requisite intent. This restriction
is content based; and that it is not narrowly tailored to the State’s asserted
interest in protecting children from the harms of online bullying. As such,
the statute violates the First Amendment’s guarantee of the freedom of
speech. REVERSED.”

10. In light of the clear guidelines established in State v Bishop from the NC

Supreme Court, the NC Cyberbullying Law was struck down.

11. Hence, the burden is on the State, not Mr. Fuller to prove his conviction

under a nearly identical statute is constitutional as applied to this set of

circumstances.

12. Mr. Fuller avers the State cannot meet this high bar, and thus this

conviction must be vacated promptly without the expense of appealing his

conviction to the NC Supreme Court: the binding case law is clear.

13. Mr. Fuller urges this Court to carefully review the 19-page opinion,

223PA15, filed on June 10, 2016 by the NC Supreme Court.

14. The crux of the issue lies with Cohen v. California, 403 U.S. 15, 26

(1971) as the US Supreme Court made clear that a person could not be

convicted for using vulgarities in public, even for wearing a jacket that

said “Fuck the Draft” in a courthouse with the purpose of “annoying or

embarrassing” court staff with such a bold political statement.

15. In America, it’s 100% legal to be annoy or to embarrass a state

employee via sending emails. Such is part of the democratic process and is

6
additionally protected as “redress of government,” i.e., the right to make a

complaint without fear of criminal punishment as the Email Evidence shows:

Mr. Fuller was furious that his Catholic views were being attacked by the pro-

transgender theorists like Ms. Zerden.

Is So-Called ‘Hate Speech’ Protected as Free Speech?

16. There is no ‘hate speech’ exception to the First Amendment. Hateful

ideas (whatever exactly that might mean) are just as protected under the First

Amendment as other ideas.


17. Supreme Court Justice John Marshall Harlan observed in the majority

opinion in a 1971 case, Cohen v. California, “that one man’s vulgarity is

another’s lyric,” about restrictions on using the word “fuck.”

18. One is free to rant about “niggers, fags, and trannies” in social media or

to complain about their conduct to government officials. Such is 100% free

speech.

19. To be sure, there are some kinds of speech that are unprotected by the

First Amendment. But those narrow exceptions have nothing to do with “hate
speech” in any conventionally used sense of the term.

20. For instance, there is an exception for “fighting words” — face-to-face

personal insults addressed to a specific person, of the sort that are likely to

start an immediate fight.

21. But this exception isn’t limited to racial or religious insults, nor does it

cover all racially or religiously offensive statements.

22. Indeed, when the City of St. Paul tried to specifically punish bigoted

fighting words, the Supreme Court held that this selective prohibition was
7
unconstitutional (R.A.V. v. City of St. Paul (1992)), even though a broad ban on

all fighting words would indeed be permissible.

23. The same is true of the other narrow exceptions, such as for true

threats of illegal conduct or incitement intended to and likely to produce

imminent illegal conduct (i.e., illegal conduct in the next few hours or maybe

days, as opposed to some illegal conduct some time in the future).

24. Indeed, threatening to kill “niggers, fags, and trannies” may be a

crime because it’s illegal to make true threats and incite imminent crimes

against anyone.

25. The Supreme Court did, in Beauharnais v. Illinois (1952), uphold a

“group libel” law that outlawed statements that expose racial or religious

groups to contempt or hatred, unless the speaker could show that the

statements were true, and were said with “good motives” and for “justifiable

ends.” But this too was treated by the Court as just a special case of a broader

First Amendment exception — the one for libel generally.

26. And Beauharnais is widely understood to no longer be good law,

given the Court’s restrictions on the libel exception. See New York Times Co.

v. Sullivan (1964) (rejecting the view that libel is categorically unprotected,

and holding that the libel exception requires a showing that the libelous

accusations be “of and concerning” a particular person); Garrison v. Louisiana

(1964) (generally rejecting the view that a defense of truth can be limited to

speech that is said for “good motives” and for “justifiable ends”); Philadelphia

Newspapers, Inc. v. Hepps (1986) (generally rejecting the view that the

burden of proving truth can be placed on the defendant).


8
27. And there are many more cases that mark a retreat to Beauharnais.

See R.A.V. v. City of St. Paul (1992) (holding that singling bigoted speech

is unconstitutional, even when that speech fits within a First Amendment

exception); Nuxoll ex rel. Nuxoll v. Indian Prairie Sch. Dist. # 204, 523 F.3d

668, 672 (7th Cir. 2008) (concluding that Beauharnais is no longer good

law); Dworkin v. Hustler Magazine Inc., 867 F.2d 1188, 1200 (9th Cir. 1989)

(likewise); Am. Booksellers Ass’n, Inc. v. Hudnut, 771 F.2d 323, 331 n.3

(7th Cir. 1985) (likewise); Collin v. Smith, 578 F.2d 1197, 1205 (7th Cir. 1978)

(likewise); Tollett v. United States, 485 F.2d 1087, 1094 n.14 (8th Cir. 1973).

28. Scholarship includes the following: Erwin Chemerinsky, Constitutional

Law: Principles and Policies 1043-45 (4th ed. 2011); Laurence Tribe,

Constitutional Law, §12-17, at 926; Toni M. Massaro, Equality and Freedom

of Expression: The Hate Speech Dilemma, 32 Wm. & Mary L. Rev. 211,

219 (1991); Robert C. Post, Cultural Heterogeneity and Law: Pornography,

Blasphemy, and the First Amendment, 76 Calif. L. Rev. 297, 330-31 (1988).

29. Finally, “hostile environment” laws have sometimes been read as

applying civil liability — or administrative discipline by universities — to

allegedly bigoted speech in universities and places of public accommodation.

There is a hot debate on whether those restrictions are indeed constitutional;

they have generally been held unconstitutional on appeal.

30. Those who want to outlaw “hate speech” may make such arguments

yet first must acknowledge that they are calling for a fundamental change4

in First Amendment law before government would be allowed to suppress

4 See Volokr’s analysis http://www2.law.ucla.edu/volokh/harass/substanc.htm


9
certain viewpoints. This would require re-educating judges, juries,

prosecutors, and law enforcement to distinguish “free speech” from “hate

speech” at all levels of government.

Rude Speech to the Government

31. Mr. Fuller was convicted of sending 12 emails to a government worker

on her government email account about that worker’s activities that Mr. Fuller

strongly objected for politocal and religious reasons.

32. There may be a First Amendment exception for unwanted offensive


speech sent into people’s homes. In Rowan v. U.S. Post Off. Dept., 397

U.S. 728, 738 (1970). But Rowan does not apply to unwanted speech

communicated to government employees doing their government jobs.

Indeed, courts have rejected attempts to punish such speech, even when

it was highly offensive. For example, in Popa, a defendant called the office

of then-U. S.-Attorney Eric Holder seven times; in some of the calls, he left

voice-mails, and in others he spoke to two secretaries repeatedly referred to

Holder as a “whore, born by a negro whore.” Yet even such highly offensive
speech, the D.C. Circuit concluded, could not constitutionally be punished.

33. Yet Popa’s speech would have been punishable under N.C. Gen. Stat.

§ 14-196.3(b)(2). Popa’s phone calls would likely be found to have been

intended to harass, torment, or embarrass; the jury in that case concluded

that they were indeed intended to “annoy, abuse, . . . or harass,” yet, as

the United States Court of Apeals (D.C. Circuit) held, such speech to the

government remains constitutionally protected: an expression of frustration is

legal even if highly offensive and racially bigoted.


10
34. The United States Court of Apeals (Ninth Circuit) has similarly held

in Poocha, that saying “fuck you” to a federal law enforcement officer falls

“squarely within the protection of the First Amendment, observing ”the

United States Supreme Court has consistently held that the First Amendment

protects verbal criticism, challenges, and profanity directed at police officers

unless the speech is ‘shown likely to produce a clear and present danger of a

serious substantive evil that rises far above public inconvenience, annoyance,

or unrest.’” Id. at 1080 (citing City of Houston v. Hill, 482 U.S. 451, 461

(1987).

35. The logic of that decision would equally apply to speech said to

via emails to a UNC professor at her official email address — Mr. Fuller’s

situation — since such email contact are less offensive than are in-person

insults.

36. Likewise, the Supreme Court of Iowa overturned a harassment

conviction for sending a “nasty” letter to a state highway patrolman, calling

him a “rednecked motherfucker.” See State v. Fratzke, 446 N.W.2d 781,

782, 784 (Iowa 1989). The Massachusetts Supreme Judicial Court held

that expletive-filled letters sent to a elected official, calling him “the biggest

fucking loser” and a “fucking asshole,” likewise could not be criminally

punished. Commonwealth v. Bigelow, 59 N.E.3d 1105, 1108, 1112 (Mass.

2016). All these decisions recognized that such speech to the government

was 100% protected by the First Amendment.

37. Yet Mr. Fuller’s emails never rise to such profanity: as a whole they

express religious and political opposition to transgenderism. To be sure,


11
speech of this sort, especially if repeated, can distract government employees

from their normal duties and be annoying, and can thus interfere in some

measure with government efficiency. But the risk of such modest interference

cannot justify criminalizing such speech by private citizens like Mr. Fuller.

38. Speech does not lose its First Amendment protection simply because

it is intended to harass, embarrass, or torment. Under well-accepted First

Amendment doctrine, a speakers’ motivation is entirely irrelevant to the

question of constitutional protection.” F.E.C. v. Wis. Right to Life, Inc., 551

U.S. 449, 468 (2007).

39. The intent to annoy, abuse, or harass does not strip speech of

protection, Popa held, at least when the speech is “public or political

discourse,” which includes calls to government offices complaining rudely

about alleged mistreatment.

40. Speech on public matters cannot lose its First Amendment protection

simply because of its supposedly bad intention. Punishing speech based

on the speaker’s supposed intention to annoy, abuse, harass, embarrass, or

torment risks deterring even well-intentioned speech. “No reasonable speaker

would choose” to engage in speech that is subject to an intent-based statute

if his “only defense to a criminal prosecution would be that its motives were

pure. An intent-based standard blankets with uncertainty whatever may be

said, and offers no security for free discussion.” Wis. Right to Life, 551 U.S. at

468. “First Amendment freedoms need breathing space to survive,” and “[a]n

intent test provides none.”

41. This same logic applies to Mr. Fuller’s conviction: the Court is urged
12
to review the State’s Evidence in the Appendix.

42. Consider, for instance, a crime victim who repeatedly calls the police

department to complain about what she views as inadequate attention being

paid to her case. She may anticipate that she might become angry, and

use vulgarities to the government employee fielding her call. If the caller

hears of prosecutions such as that of Mr. Fuller, and realizes that she could

be criminally punished if the prosecutor and jury concludes that she also

intended to “annoy” or “embarrass” the government employee, she might be

hesitant to call in the first place, because the intent-based test would “offe[r]

no security for free discussion,” F.E.C. v. Wis. Right to Life, Inc. 551 U.S. 449

(2007).

Special Consideration to Those with Mental Disabilities

43. This Court should take note, via res judica, that Mr. Fuller has a mental

disability and is protected under federally law from unjust discrimination.

44. See Mr. Fuller’s request for accommodations to the Unites States

Court of Appeals (Fourth Circuit) and its response (Exhibits A and B).
45. According to the NIH5, Fuller’s mental disorder manifests as

oscillating patterns between being too withdrawn and being too intrusive.

The key concepts are as follows:

“Symptoms of the withdrawn phase include: problems sustaining at-


tention in conversations, not following instructions, being distracted by
unrelated thoughts.”

“Symptoms of the intrusive phase include: talking nonstop, interrupting


or intruding in conversations, constant moving about, and aggressive
behaviors that have high potential for harm.”

5 https://www.nimh.nih.gov/health/topics/attention-deficit-hyperactivity-disorder-adhd/index.shtml
13
“These problems are not due to defiance or lack of comprehension.”

46. Federal requires6, “State and local governments to avoid discriminating

against people with mental health disabilities” and to refrain from

“unnecessary criminal justice involvement for people with disabilities.”

47. Mr. Fuller hereby makes this Court aware that the symptoms of his

disability is to communicate without much reference to social norms: the NIH

literature makes it clear that persons with this disorder may engage in verbal

communications that are “aggressive and intrusive.”

48. Here are excerpts from a more detailed explanation7 of Mr. Fuller’s

mental disorder, ADHD:

Attention-Deficit/Hyperactivity Disorder (ADHD) is a common, long-lasting,


treatable psychiatric disorder, characterized by a pattern of developmentally
inappropriate inattention, motor restlessness, and impulsivity.
Recently, neuroimaging has led to several important advances in the
understanding of the neurobiology underlying the clinical picture of ADHD,
and demonstrates a clear brain basis to the disorder in regions involved in
attention, and executive and inhibitory control.
[Persons] with the predominantly hyperactive-impulsive type are aggressive
and impulsive, and tend to be highly rejected by their peers.
Neuropharmacological studies have provided evidence that ADHD involves
dysregulation of both noradrenaline (NE) and DA neurotransmitter systems.

49. Hence, it would appear very likely that Mr. Fuller lacked intent “to

annoy and embarrass” or at least had a diminished ability to understand the

social response to his language.

50. Supporting this theory, the State’s own expert witness, Dr. Howard

Grotsky, observed in a report requested by the trial court8 that Mr. Fuller was

6 See https://www.ada.gov/cjta.html
7 https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3016271/
8 See the Appendix for the full report.
14
being treated for ADHD and suggested his intent was religious:
“Mr. Fuller sent approximately twelve emails to [Ms. Zerden] because he
disagreed with her views on transgenderism... Belonging to a very strict sect
of Catholicism (Opus Dei) meaning the ‘Work of God’ this very conservative
segment of the church does not believe in birth control, premarital sex,
masturbation, pornography, or homosexuality.”
“According to the beliefs of Opus Dei, sex is holy and pure in the context of
marriage. Mr. Fuller has been involved with the group for about twelve years
and has unconditionally accepted the beliefs of the organization.”
“References who have known him for many years describe Mr. Fuller as
being genuine, stands up for his beliefs, and is passionate about his faith.”
“[Mr. Fuller] is likely to have conflict with authority figures and have
difficulty expressing emotions in a modulated manner [and is] not sensitive
to the needs and feelings of others.”

Conclusion and Request for Relief

51. Because of the extensive case law cited that is binding to this Court and

when considering the symptoms of Mr. Fuller’s mental disability described

by Dr. Grotsky, Mr. Fuller hereby moves this court to vacate his conviction in

case 17-CRS-050340 and to dismiss the charge with prejudice with a written

opinion of the legal reasoning.

52. Mr. Fuller had no help in proofreading this pleading, and ask that it be

held to a liberal standard because he is both pro se and has communication

impairments.

15
IN THE SUPERIOR COURT OF NORTH CAROLINA

STATE OF NORTH CAROLINA in Orange County

v.

NAPIER SANDFORD FULLER, No. 17-CRS-050340

Defendant-Appellant, pro se.

APPENDIX OF EXHIBITS
IN SUPPORT OF MOTION FOR APPROPRIATE RELIEF #1 & #2

This Appendix is submitted to the Court in support of Mr. Fuller’s M.A.R.

#1 and #2 to vacate his recent conviction of “Harassing Communications”

under N.C. Gen. Stat. § 14-196.3(b)(2), being obtained on August 9, 2018 in


Orange County.

As to the standard of review in evaluating this pleading, courts have

traditionally afforded leeway to compensate for self-represented parties lacking

legal training: pro se pleadings are held to “an especially liberal standard.” See

Haines v. Kerner, 404 U.S. 520 (1971) and Melvin Finance, Inc. v. Artis, 157

N.C. App. 716, 2003 WL 21153426 (N.C. App.) This principal is especially

prescient when evaluating the pleading of a pro se litigant with a mental

disability that impairs behavioral and cognitive function1.


1 Both the United States District Court (E.D.N.C.) and the United States Court of Appeals for the 4th
Circuit have issued orders in 2019 that Mr. Fuller is to receive federal disability accommodations in terms of
court interactions regarding his mental disability in the interest of justice.
This 24th Day of April 2019

NAPIER SANDFORD FULLER


Defendant–Appellant (self-represented)
2201 Lynnwood Drive
Wilmington NC 28403-8026
Post Office Box 7901
Wilmington NC 28406-7901
910.262.2359
napier@alum.mit.edu

CERTIFICATE OF SERVICE
I, the petitioner, NAPIER SANDFORD FULLER, pro se, certify that on the date above, I served a copy of this
pleading upon the opposing party by depositing a copy of same in the United States mail with prepaid, first-class
postage and/or via email. I have been instructed that the following individuals might be the State’s agent, but no order of
representation has been filed in the docket of 17-CRS-050340 and thus such representation is speculative.

Kimberly Overton Spahos, Bar #28006 Mary C. Babb, Bar #25731


Special Prosecutor NCDOJ Criminal Appeals
PO Box 3159 114 W. Edenton St.,
Cary, NC 27519 Raleigh, NC 27603
kimberly.n.overton@nccourts.org mcbabb@ncdoj.gov
919-270-9403 919-716-6573

The petitioner, NAPIER SANDFORD FULLER, pro se, aver that I have been ordered by this Orange County Superior
Court to (1) never contact the Orange County prosecutors, and to (2) never contact “Judge Fox” in this Orange County
Superior Court by threat of imprisonment of 30 days and/or a loss of a secured bond of $50,000.

I AVER THESE EXCESSIVE POST-CONVICTION BOND CONDITIONS, IN THE APPEAL OF A $1,000 FINE, FURTHER
PREVENT COMMUNICATION AND COMPLIANCE REGARDING MY ADA DISABILITY REQUESTS, ARE THINLY VEILED
ACTS OF RETALIATION FOR FILLING AN ADA LAWSUIT, AND HAVE SUBSEQUENTLY DEPRIVED ME OF FEDERALLY
PROTECTED CONSTITUTIONAL RIGHTS.

2
INDEX OF EXHIBITS

1. Mr. Fuller’s request for disability accommodations to the United States

Court of Appeals (4th Circuit).

2. United States Court of Appeals (4th Circuit) Response.

3. Dr. Howard Grotsky’s report ordered by the Superior Court.

4. State’s Evidence: photocopies of 12 emails used to convict Mr. Fuller.

3
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 19-1110

NAPIER SANDFORD FULLER,

Plaintiff – Appellant,

v.

REBECCA W. HOLT, in her official MOTION TO REQUEST


capacity as employee of the North DISABILITY ACCOMMODATIONS
Carolina, Office of the Courts,
RICHARD A. BADDOUR, in his TO BETTER ACCESS THE
official capacity as employee of COURT PROCESS ITSELF
the North Carolina Administrative
Office of the Courts, JAMES C.
STANFORD, in his official capacity
as employee of the North Carolina
Administrative Office of the Courts,
JAMES T. BRYAN, III, in his official
capacity as employee of the North
Carolina Administrative Office of
the Courts, SAMANTHA HYATT
CABE, in her official capacity as
employee of the North Carolina
Administrative Office of the Courts,
and CATHERINE C. STEVENS in
her official capacity as employee of
the North Carolina Administrative
Office of the Courts,

Defendants – Appellees.
1. Petitioner NAPIER SANDFORD FULLER, a self-represented Plaintiff
– Appellant, respectfully requests “reasonable accommodations” to
better access his own case and avoid potential problems with court staff
and opposing counsel.
2. Petitioner makes it known that as it relates to his roles as pro se
litigant (i) he has a mental impairment that substantially limits major
life activities: A.D.H.D. being specifically listed in 28 C.F.R. § 35.108, (ii)
there is a medical record of Petitioner ’s impairment dating from 1990,
and (iii) Petitioner is regarded as having received ADA accommodations
in the past from the State of North Carolina and other entities such
as Washington University in St. Louis, Harvard University, and the
Massachusetts Institute of Technology in compliance with federal
disability laws, and (iv) Petitioner is still being treated for this condition
that impairs cognitive and behavioral function.
3. Petitioner therefore invokes the Americans with Disabilities Act of
1990 (42 U.S. Code 12131–12134), as amended by the ADA Amendments
Act of 2008 (Public Law 110–325, 122 Stat. 3553), the ADA Amendments
Act Final Rule (81 FR 53202, published Aug. 11, 2016), and its
implementing regulations, and Section 504 of the Rehabilitation Act of
1973 (29 U.S. Code § 701).
4. According to the literature in the NIH website, symptoms1 of
ADHD, a neurological brain disorder, include “aggressive behavior,

1 from http://www.nimh.nih.gov “Attention-Deficit/ Hyperactivity Disorder (ADHD): THE BASICS,”


NIH Publication # QF-16-3572, revised 2016., and Gallo and Posner, “Moving towards causality in atten-
tion-deficit hyperactivity disorder: overview of neural and genetic mechanisms.” Lancet Psychiatry. 2016 June
; 3(6): 555–567.

2
emotional liability, poor frustration tolerance, and excessive excitability”
as well as “problems organizing tasks and activities, such as doing
tasks in sequence, keeping materials and belongings in order, keeping
work organized, managing time, and meeting deadlines.” Therefore,
this court is requested by Petitioner and should grant “reasonable
accommodations” to help Petitioner fully participate in this very legal
case. Specifically, the Petitioner wishes his expressed will, his intentions,
to be given a greater weight than his mastery of appellant procedure.
5. Petitioner’s medication also presents significant side effects.
6. Although having studying at many prestigious universities,
Petitioner’s verbal and written communications are impaired: i.e., all
such schools provided note-takers and proofreaders at their expense to
help Petitioner communicate more effectively: due to strict bar rules,
Petitioner has been unable to find assistance in this legal matter. Hence,
pleadings can often be full of grammatical mistakes and oscillate far
beyond “normal emotional” boundaries.
7. Petitioner thus encourages all parties involved in the case to adhere
to US Dept. of Education guidelines in how to “manage” bad behaviors.
Understand that people with A.D.H.D. have something that’s called
“emotional dyregulation” in which they may shift wildly in emotional
tone and exhibit behaviors that are hostile. For example, the American
“adversarial legal process” can be very confusing -- Petitioner may
oscillate wildly between being very trusting of opposing council or
a judge or a clerk, only to feel betrayed and become verbally hostile
later. Often the underlying reason of aggressive is frustration in lack of
communication and misunderstanding. Such might lead to hyper-kinetic
activities in a court setting -- moving about -- and interrupting.

3
8. Not surprisingly, criminal defendants with this disorder often are
regarding as trouble makers to be treated harshly: they are often “made
examples” of in group settings. Yet federal disability laws and USDOJ
guidelines seek to prevent such people from discrimination. Hence every
aspect of the criminal justice system -- from a decision to arrest to post-
conviction bond conditions -- must take into account the person’s mental
disability with the intent to prevent such people from needless interactions
with the criminal justice system.
9. Hence, Petitioner asks for patience and extra help in “getting through” his
court process itself with an eye towards justice: i.e., modifications to court
rules and traditions are valid in the interest of justice in accommodating a
self-represented litigant with mental impairments. Petitioner requests for no
specific accommodations at this time other than extra patience.
10. Respectfully submitted on this 14th day of February 2019.

____________________________
NAPIER SANDFORD FULLER
Plaintiff – Appellant (self-represented)
2201 Lynnwood Drive
Wilmington NC 28403-8026
Post Office Box 7901
Wilmington NC 28406-7901
910.262.2359
napier@alum.mit.edu

4
USCA4 Appeal: 19-1110 Doc: 10 Filed: 02/20/2019 Pg: 1 of 1

FILED: February 20, 2019

UNITED STATES COURT OF APPEALS


FOR THE FOURTH CIRCUIT

___________________

No. 19-1110
(7:18-cv-00059-FL)
___________________

NAPIER SANDFORD FULLER

Plaintiff - Appellant
v.

REBECCA W. HOLT, in her official capacity as employee of the North Carolina


Administrative Office of the Courts; RICHARD A. BADDOUR, in his official
capacity as employee of the North Caroina Administrative Office of the Courts;
JAMES C. STANFORD, in his official capacity as employee of the North Carolina
Administrative Office of the Courts; JAMES T. BRYAN III, in his official
capacity as employee of the North Carolina Administrative Office of the Courts;
SAMANTHA HYATT CABE, in her official capacity as employee of the North
Carolina Administrative Office of the Courts; CATHERINE C. STEVENS, in her
official capacity as employee of the North Carolina Administrative Office of the
Courts

Defendants - Appellees

___________________

ORDER
___________________

Upon consideration of the motion for disability accommodations to better

access the court process, the court grants the motion.

For the Court--By Direction

/s/ Patricia S. Connor, Clerk