Unconstitutional? Wake DA dismisses bogus "cyberstalking" charge over social media post
Jewish journalist/activist was charged over a Twitter/X post regarding a keffiyeh-wearing Harris Teeter employee
A misdemeanor cyberstalking charge of dubious constitutionality against Jewish journalist/activist Sloan Rachmuth has been dropped just days after it was filed by the Holly Springs Police, with Wake County District Attorney Lorrin Freeman explaining to the court that the "described conduct does not meet elements of the offense" in a filing on Tuesday.
The basis of the charge was a single post Rachmuth made on Twitter/X with images of a "Hamas sympathizer" she encountered stocking groceries at a local Harris Teeter.
In a post the same day of her arrest, Rachmuth suggested involvement by the NC Democratic Party while vowing to "continue to fight against antisemitism on campus and in the public square." (Rachmuth has attracted many enemies on the left due to her investigative journalism, her outspoken right-wing and Zionist activism, and her role as Republican superintendent candidate Michele Morrow's campaign manager.)
Background
On October 31st, Rachmuth shared a post on Twitter/X with three images of an employee at the Harris Teeter in Holly Springs on Sunset Lake Road, accusing her of being a "Hamas sympathizer":
Went to @HarrisTeeter in Holly Springs and saw this Hamas sympathizer.
When I asked her why she was wearing a keffiyeh, the store manager told me to leave!! pic.twitter.com/T4iOxozdX8
— Sloan Rachmuth (@SloanRachmuth) October 31, 2024
The images show the employee wearing a black-and-white keffiyeh; a garment which has become widely used as a symbol of "Palestinian unity" in opposition to the state of Israel, according to Brittanica, including prominent use by Palestinian terrorists such as Yasser Arafat (former leader of the Palestine Liberation Organization) and Leila Khaled (first female airplane hijacker.)
Rachmuth says that when she confronted the employee about why she was wearing the distinctive headgear, the employee responded with "Free Palestine".
Two days later, on November 2nd, a report on the incident was taken by Elliott Warren of the Holly Springs Police Department. The report, which lists the crime as "Cyberstalking" with a note of "Suspect Hate / Bias Motivated: ANTI_ISLAMIC (MUSLIM)," includes the following "narrative" of the incident:
A victim was harrassed at her work place by the offender. Offender took pictures and called the victim a terrorist. [11/03/2024 06:34, EWARREN, HPD]
Rachmuth denies calling the employee a "terrorist".
Warren followed up by obtaining an arrest warrant for Rachmuth, claiming that she committed a Class 2 misdemeanor under NC G.S. § 14‑196.3 by using her cell phone to take and post the images "for the purpose of terrifying, harassing, or embarrassing [the employee]":
On or about the date of offense shown and in the county named above the defendant unlawfully and willfully did did [sic] knowingly permit an electronic communication device, CELLPHONE, under the defendant's control to be used for a purpose prohibited by G.S. 14-193.3, TO TAKE PICTURES AT HARRIS TEETER AND ELECTRONICALLY COMMUNICATE ON SOCIAL MEDIA, FOR THE PURPOSE OF TERRIFYING, HARASSING, OR EMBARRASSING HER.
Despite the discrepancy between the alleged behavior and the elements of the offense, Warren executed the arrest the next day at Rachmuth's home: "I was handcuffed and arrested in front of my children and my neighbors for no legal cause," said Rachmuth in a post on Twitter/X.
NC G.S. § 14‑196.3
It doesn't take an expert or a statement from the DA for one to get an idea of how the "described conduct does not meet elements of the offense." Most obviously, the arrest warrant is missing the word "repeatedly," an element of the statute in question (emphasis added):
§ 14‑196.3. Cyberstalking.
(b) It is unlawful for a person to:
(2) Electronically mail or electronically communicate to another repeatedly, whether or not conversation ensues, for the purpose of abusing, annoying, threatening, terrifying, harassing, or embarrassing any person.
...
(4) Knowingly permit an electronic communication device under the person's control to be used for any purpose prohibited by this section.
What is perhaps of more interest to all citizens of North Carolina than this failure of the judicial process is the First Amendment implications of the statute, both in regards to free speech as well as freedom of the press.
One could imagine any number of ways in which members of the press or citizens expressing their political opinions could be accused of "annoying" or "embarrassing" a particular person through multiple messages communicated via email or published on social media.
In fact, one would expect the "disclaimer" section of this statute to fully apply to Rachmuth's post, as it is nonviolent, and both expressed political views and provided lawful information:
(e) 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.
However, merely including "this law does not violate your constitutional rights" is not enough to pass muster. Content-based regulation of speech is subject to the strict scrutiny standard, under which "the government must show that its actions were 'narrowly tailored' to further a 'compelling government interest,' and that they were the 'least restrictive means' to further that interest," according to the Cornell Law School Legal Information Institute.
In fact, this is the standard used by North Carolina courts to overturn provisions of two related statutes in the past decade.
The 2016 ruling of the NC Supreme Court in State v. Bishop held that while the state had a legitimate interest in protecting children from online bullying, the provision in the cyberbullying statute (§ 14‑458.1) which criminalized posting "private, personal, or sexual information" about a minor with the "intent to intimidate or torment" was not narrowly tailored to that interest, and was thus unconstitutional.
Three years later, in State v. Shackelford, the Appeals Court overturned a man's stalking convictions for making repeated social media posts and sending emails about a woman he had decided was his future wife after meeting her at a church service.
In this case, the court ruled that the application of the stalking statute (§ 14‑277.3A) to the social media posts about the subject of his attentions on the now defunct Google Plus network was not the least restrictive means of pursuing the government's argued interest in preventing the escalation of stalking into "more harmful or lethal criminal behavior," as the woman already had a no-contact prohibiting the man from contacting her directly.
Given this precedent, it seems very unlikely that a conviction of Rachmuth on these obviously politically-charged lines could have been successfully prosecuted and sustained through appeals, even if the government had alleged she made "repeated" electronic communications for the purpose of "terrifying, harassing, or embarrassing" the employee. (Court records show Rachmuth has previously beaten a cyberstalking charge in Union County, with the judge granting a dismissal of the case at the close of evidence.)
Disclaimer: I am not a lawyer. I have also interacted with Rachmuth in the past in relation to our intersecting fields of journalistic coverage.