In recent months, my colleagues and I have received an increasing number of questions about how to handle hostile, harassing, or threatening behavior from citizens. The scenarios encountered by local government officials and employees include a wide range of behavior: disturbing comments on social media, government employees being followed home from work, personal attacks during public meetings, and threats of violence. In some instances, this behavior has become so disturbing that it has driven public servants to quit their jobs entirely. This problem is not unique to North Carolina. According to a recent report released by the National League of Cities, eighty-one percent of surveyed local public officials reported having experienced harassment, threats and violence, while eighty-seven percent reported that they have observed an increase in attacks on public officials during their time in office.
How can local governments respond to this type of conduct? First, it’s important to understand that in some instances, a local government’s ability to respond to harassing speech is limited by the First Amendment. The First Amendment limits the government’s ability to regulate the public’s expressive activity. Protecting the right of private citizens to be critical of the government is at the heart of the First Amendment’s protection of free speech. However, that doesn’t mean that public officials and government employees have no recourse in response to certain types of speech, nor does it mean that the First Amendment protects all types of speech equally. For example, courts treat harassing speech (mean-spirited personal attacks and criticism) differently from true threats of violence when assessing whether speech receives First Amendment protection. True threats may lead to criminal prosecution, as they are not a constitutionally protected category of expression. Likewise, defamatory speech can subject an individual to civil liability, though the First Amendment requires a higher burden of proof when the target of the defamatory speech is a public official.
Below, I’m addressing a few different avenues that public officials and employees may consider in response to various types of harassing or threatening behavior.
Blocking Emails from Particular Senders
Local governments should think carefully before blocking a private citizen from being able to contact the local government or one of its departments. A total block on emails from a member of the public cuts off a major avenue of “speech” and “petition”—two rights that are protected under the First Amendment.
That being said, a number of cases have identified government mail and email systems as “nonpublic forums” for First Amendment purposes, meaning that restrictions on speech must only (1) be reasonable in light of the purpose of the forum, and (2) not discriminate against speech based on viewpoint.[1] If an individual is blocked from contacting local government employees via email merely because they are expressing a viewpoint that is critical of the government or critical of a particular employee, that action would clearly violate the First Amendment as unconstitutional viewpoint discrimination. However, in a nonpublic forum, generally applicable restrictions on speech do not necessarily constitute viewpoint discrimination when the purpose of the restriction is to curtail disruptive behavior and not to suppress the speaker’s viewpoint. See Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 811 (1985) (“The First Amendment does not forbid a viewpoint-neutral exclusion of speakers who would disrupt a nonpublic forum and hinder its effectiveness for its intended purpose.”).
A viewpoint-neutral action to block a particular email address may not necessarily violate the First Amendment on free speech grounds, but still raises some First Amendment concerns regarding freedom of petition.[2] The right of petition protects an individual’s right to bring complaints about public policy directly to officers of the government.[3] In the modern era, email is an important avenue for citizens to petition their local government officials. Some courts have found that an indefinite ban on contacting local government officials via email—or a ban that applies broadly to contacting all county or municipal employees—may be an overly broad restriction on the right to petition.[4] Local governments may want to consider a more narrowly tailored way to address the issue without instituting an indefinite block, such as instituting technological workarounds to help prevent staff from having to view disturbing, harassing, or threatening emails. For example, the local government may be able to help employees set up an inbox “rule” to forward emails from a particular sender to a particular folder. Alternatively, the local government may be able to set up a rule that would forward emails from a particular sender to a separate account. One person, perhaps a supervisor, could then be assigned to routinely monitor emails in that folder or separate account. Continuing to routinely monitor the emails, whether forwarded to a separate folder or a separate account, ensures that the individual in question still has meaningful access to contact the local government for legitimate purposes.
What about action to block spambots, which can send massive amounts of automated emails in a short period of time? Scholars are still debating the extent to which spambot activity constitutes protected speech under the First Amendment. However, even if we assume the activity is protected, there is a strong argument to be made that blocking spambots is a reasonable, viewpoint-neutral restriction in a nonpublic forum. Without instituting such blocks and filters, the inboxes of local government employees could be filled with thousands of duplicative spam emails, completely disrupting their ability to communicate with citizens and carry out their duties. Outside of the email context, there are many cases holding that preventing disruption of a nonpublic forum’s intended function is a reasonable justification for a restriction on speech. The few courts examining a government entity’s use of spam filters have found that the action of flagging or blocking emails as spam, without evidence of intent to suppress a particular message or retaliate against a particular speaker, does not constitute a First Amendment violation.[5]
Blocking Users or Deleting Comments on Social Media
What happens when a local government official is harassed or attacked online? When evaluating whether First Amendment issues are implicated with respect to a government official’s social media page, courts look to the extent to which the individual was maintaining the page as a “personal” page as opposed to an “official” page. This includes analyzing the extent to which a government official was using the social media page as “an important tool of governance,” as opposed to a page focused merely on personal updates or campaign activities.[6] Courts also look at whether the government official’s title and public office contact information on the page, whether it is being used to communicate about official responsibilities or government business, and whether any government employees or resources are being used to operate the account.[7] In cases where Facebook or Twitter pages are more directly tied to individual campaign activities than to official business, courts have found that officials were not acting under the color of state law when they blocked users from commenting on their pages.[8]
Local government officials should be careful to clearly delineate between their personal and official pages on social media, so that any action taken on their personal pages will not be construed as government action. If a local government official clearly maintains that distinction, they should be able to delete and block comments and users from their personal pages without implicating the First Amendment. By way of analogy, government officials may be expected to endure unpleasant criticism during the public comment period of an open meeting but are not required to open up their private homes to those same critics. Likewise, government officials who choose to create and use social media pages in their official capacities are limited in how they can restrain public commentary on those official pages, but do not face those same limitations with respect to blocking activity on a solely personal page or account. These issues become much murkier, however, if a government official intertwines personal and official activity on a single page or account.
With that background established, let’s look at the ways the First Amendment may impact the ability to delete comments or block users depending on where the harassing or threatening messages are being posted. I will use Facebook as an example below, but these guidelines would apply to other social media platforms (Twitter, Instagram, etc.) as well.
- Posted on a private citizen’s own page. A local government has no authority to control the content posted on a private citizen’s own personal Facebook page, or what he posts to private groups or to his friends’ pages. However, like any other Facebook user, a government official or employee may report certain content to Facebook that might be in violation of Facebook’s own Community Standards, such as incitement to violence, hate speech, or sexual exploitation. Posts that may constitute a crime or threaten future criminal activity may also be reported to law enforcement.
- Posted on a government employee or official’s personal page or via a direct message to the official or employee. The response in this situation depends on the extent to which the activity is directed at the employee or official’s personal page, as opposed to an account they are using primarily to communicate about official responsibilities or government business. If someone is using Facebook to post harassing or threatening messages to an employee’s personal Facebook page or sending employees private direct messages to their personal social media accounts, those employees can block this individual and delete comments. Action taken by individual employees or officials related to personal social media pages—if clearly delineated as personal pages only—does not constitute a government action for purposes of implicating the First Amendment.
- Posted to the page of a local government or local government agency. On the other hand, if this individual is posting to a county’s page, a municipality’s page, or any social media page that is clearly associated with a local government agency or government official acting in their official capacity–the analysis is different. In a landmark 2019 case, Davison v. Randall, the Fourth Circuit Court of Appeals held that the interactive portions of a government-operated social media page constitute a public forum for First Amendment purposes.[9] This includes any area of the page in which the public can post comments, reply to posts, and “like” comments and posts. This doesn’t mean that a local government cannot impose any restrictions on what gets posted on its social media page, but it does mean that it cannot selectively block users or delete comments on the page based on viewpoint. Blocking someone or deleting comments based solely on the fact that an individual is critical of the local government (or one of its agencies or officials) would likely be deemed viewpoint discrimination in violation of the First Amendment. On the other hand, a local government could consider imposing reasonable, viewpoint-neutral, generally applicable policies about the type of comments that are allowed on its social media page(s).
Civil Defamation Lawsuits
Public officials and employees may consider bringing a civil defamation lawsuit against an individual who is making false, defamatory statements. This is a civil claim that must brought by an individual, not by the local government itself. Defamation cases are challenging (though not impossible) for public officials to win. Due to the First Amendment implications, there is a higher burden of proof for a claim to succeed when a public official is the individual allegedly being defamed. The defamatory statement must be made with “actual malice,” meaning the speaker knew that the statement was false or acted with reckless disregard as to the statement’s truth or falsity.[10] There are also some other criteria that have to be met. For example, the defamatory statement must: (1) be made to at least one third party (not just privately to the person being defamed), (2) be a false statement of fact (not mere opinion), and (3) identify a specific person in a clearly identifiable manner. Generalized statements about a local government agency that do not identify specific individuals or positions would not be a sufficient basis for a claim.
Civil No-Contact Orders
Government officials and employees may have the ability in certain circumstances to seek a civil no-contact order barring an individual from contacting them. Two types of orders may be available:
- Workplace Violence Prevention No-Contact Orders.[11] An employer (including a local government) may file a civil action in district court seeking a no-contact order on behalf of an employee who has suffered unlawful conduct from any individual that can reasonably be construed to be occurring, or to have been carried out, at the employee’s workplace. Unlawful conduct includes (a) attempting to cause bodily injury or intentionally causing bodily injury, (b) willfully, and on more than one occasion, following, being in the presence of, or otherwise harassing the employee without legal purpose and with the intent to place the employee in reasonable fear for the employee’s safety, or (c) willfully threatening to physically injure the employee in a manner and under circumstances that would cause a reasonable person to believe that the threat is likely to be carried out and that actually causes the employee to believe that the threat will be carried out. The employer must consult with the employee before seeking the no-contact order to determine whether there are any safety concerns related to the employee’s participation in the process.
- 50C Civil No-Contact Orders.[12] A person may seek a 50C civil no-contact order in district court based on allegations of stalking. The statutory definition of stalking includes harassing a person on more than one occasion without legal purpose and with the intent to place the person in reasonable fear for the person’s safety or the safety of their immediate family or close associates.
For each of these types of orders, a court can enter a temporary order (not exceeding 10 days) or a “permanent” order (no longer than one year but can be renewed for good cause). Both types of orders can include restrictions on the respondent’s ability to visit, stalk, harass, or contact the victim, but the relief granted in the workplace violence no-contact order focuses more on contact at the employer’s workplace. No showing of physical injury is required to obtain either type of order. A significant difference between the two orders is who can obtain them: the employer can seek a workplace violence prevention no-contact order on behalf of an employee, while an individual employee must seek a 50C civil no-contact order on the employee’s own behalf.
Potential Criminal Charges
There are several North Carolina laws that criminalize certain types of threats and harassment. These include:
- Communicating threats. G.S. 14-277.1 –A person is guilty of this offense if the person willfully threatens to physically injure another person or that person’s child, sibling, spouse, or dependent or willfully threatens to damage another’s property, and the person communicates that threat in a manner that would make a reasonable person believe it is likely to be carried out and the threat is believed by the other person.
- Harassing phone calls. G.S. 14-196 – Includes harassing telephone calls, using threatening language on the telephone, or repeated telephone calls to harass.
- Cyberstalking. G.S. 14-196.3 – Includes using e-mail or other electronic communication to threaten bodily harm or physical injury, or repeated use of e-mail/other electronic communication to harass. There is an exception for “peaceable, nonviolent, or nonthreatening activity intended to express political views or to provide lawful information to others.” There is also a provision stating that the law may not be construed “to impair any constitutionally protected activity, including speech, protest, or assembly.”
- Stalking. G.S. 14-277.3A – Stalking generally requires willful harassment or other “course of conduct directed at a specific person without legal purpose” that the defendant knows or should know will cause the person to fear for their own safety or that of their family or close personal associates, or cause the person to suffer substantial emotional distress due to fear of death, bodily injury, or continued harassment.
Keep in mind that courts will evaluate some of these laws differently when applied to pure speech (especially speech directed at public officials) because of the First Amendment implications. For example, regulating pure speech that does not communicate a true threat may create First Amendment problems under the stalking and cyberstalking statutes. This was demonstrated by State v. Shackelford, 264 N.C. App. 542 (2019), a case in which the North Carolina Court of Appeals determined that North Carolina’s stalking statute was unconstitutional as applied to the defendant’s repeated posts on social media about a woman with whom he fantasized having a romantic relationship. The speech directed at public officials carrying out the work of government is even more likely to be protected under the First Amendment than speech between or about private persons.
As my colleague Shea Denning has noted in her post on the Shackelford case, many provisions of the stalking statute regulate conduct (e.g. following, monitoring, surveilling, or threatening a person) rather than pure speech. Those conduct-based prohibitions do not raise First Amendment concerns. Likewise, the stalking statute’s provisions prohibiting distressing and unwanted one-to-one speech (communication directed to the victim) likely do not raise the same First Amendment concerns. The issue in Shackelford was that the defendant was being criminally prosecuted for his speech about an individual—not directed to the individual—based on social media posts that did not contain any threats towards the individual.
What if a social media post, email, or phone call does involve a threat of violence? True threats of violence do not receive First Amendment protections and can be subject to criminal prosecution. In State v. Taylor, 379 N.C. 589 (2021), the North Carolina Supreme Court considered a defendant’s First Amendment challenge to his conviction for threatening to kill a court officer in violation of G.S. 14-16.7. The defendant in that case posted disturbing comments on Facebook about the local district attorney after she declined to institute a criminal prosecution following the death of a child. The defendant’s comments included threats of violence towards the district attorney. The Taylor Court found that true threats may be criminally punished. The Court defined a true threat as “an objectively threatening statement communicated by a party which possesses the subjective intent to threaten a listener or identifiable group.” The Court explained that “[w]hen an individual communicates a true threat, the First Amendment allows the State to punish the individual because a true threat is not the type of speech [which is] indispensable to decision making in a democracy.” My former colleague Jonathan Holbrook has written a more in-depth post on the meaning of “true threats” in the wake of Taylor.
A Duty to Protect Employees
I’ve talked a lot in this post about the First Amendment rights of citizens to speak critically about public officials. Those rights must be balanced with a local government’s legal duty to protect its employees from workplace violence and from unlawful harassment based on sex, race, national origin, or any other protected characteristic.
- An employer has a duty to provide a safe working environment under North Carolina’s Occupational Safety and Health Act, which requires an employer “to furnish to each of his employees conditions of employment and a place of employment free from recognized hazards that are causing or are likely to cause death or serious injury or serious physical harm to his employees.”[13] Exposure to workplace violence hazards, including hazards created by third-parties, can form the basis for an OSHA inspection or citation.
- An employer is liable under Title VII of the Civil Rights Act of 1964 for the actions of third-parties creating a hostile work environment if the employer knew or should have known of the harassment and failed “to take prompt remedial action reasonably calculated to end the harassment.”[14] Title VII prohibits harassment based on race, color, religion, sex, or national origin. Under Title VII, a local government employer is responsible for taking reasonable action to stop unlawful harassment of an employee, even if that harassment is coming from private citizens rather than the employee’s colleagues or supervisors.
If harassment, threats, and violence towards public officials continue to increase in the years to come, local governments will need to continually reevaluate strategies for taking action to protect employees in a manner that complies with the First Amendment.
Other Issues
For a discussion of how a local government can deal with personal attacks during the public comment period of a public meeting, please see my colleague Frayda Bluestein’s blog post. In recent months, many local governments have also raised questions about encounters with “First Amendment auditors.” This is a complex topic that goes beyond the scope of this blog post, but please stay tuned for a deep-dive bulletin from the School of Government on First Amendment audits in the coming months.
Special thanks to Shea Denning for her expertise on the criminal law issues involved in this post. Her post about whether disturbing or threatening behavior directed at public officials and employees could support criminal prosecution is available here.
Footnotes
