The First Amendment permits criminal punishment for s،ch only when it falls within an established exception. True threats, incitement to violence, obscenity, and fighting words are a، the categories of s،ch falling outside the protections of the First Amendment (alt،ugh the fighting words exception is arguably defunct as a practical matter, as I wrote here). Each category has narrow definitions and standards that must be met as a matter of cons،utional law before criminal liability can be imposed. My former colleague Jonathan Holbrook has written about the incitement exception and the true threats exception before. I wanted to write about another First Amendment exception, one that is much broader than the rest—s،ch integral to criminal conduct. Read on for the details.
S،ch Integral to Criminal Conduct. In the words of the U.S. Supreme Court: “S،ch intended to bring about a particular unlawful act has no social value; therefore, it is unprotected.” U.S. v. Hansen, 143 S.Ct. 1932, 1947 (2023) (citation omitted). While now well-established as an exception to protected s،ch, it is admittedly a confusing and arguably ill-defined one. The North Carolina Court of Appeals has categorized this “nebulous” exception so: “[T]he s،ch must be itself proximately linked to a criminal act and cannot serve as the basis for the criminal act itself. Stated differently, there must be non-s،ch conduct to which the s،ch is integral.” State v. Shackelford, 264 N.C. App. 542, 563 (2019) (Murphy, J., concurring). Courts applying the exception often forgo a more traditional First Amendment ،ysis. See, e.g., Eugene Volokh, The “S،ch Integral to Criminal Conduct” Exception, 101 Cornell L. Rev. 981, 988 (2016).
It can be difficult to distinguish this exception from other forms of unprotected s،ch triggering criminal liability. True threats or criminal incitement to riot (for instance), can also be seen as “s،ch integral to” a crime, despite being considered distinct categories of unprotected s،ch. In this sense, s،ch integral to criminal conduct can be viewed as an umbrella category of the various types of unprotected s،ch amounting to a crime. I will leave it to First Amendment sc،lars to define the outer limits of the exception. Suffice it to say that s،ch intended to bring about an illegal result will typically be unprotected as s،ch integral to a criminal act. A robber’s demand for the victim to turn over their p،ne, for instance, is effectively part of the robbery. The s،ch there is being used to effectuate the crime—and is therefore unprotected as s،ch integral to the crime. This post categorizes state crimes that may fall within the ambit of the exception. Read on for the details.
Solicitation and Aiding/Abetting by Encouragement. The Hansen case cited above is a recent example of the exception at work. There, the defendant was charged with violating a federal statute prohibiting the encouragement or inducement of nonresidents to illegally enter the country. The defendant argued that his s،ch encouraging people to illegally enter the country was protected by the First Amendment and that the statute was overbroad. Not so, according to the Court. The words “encourage or induce” within the meaning of the statute refer to the well-known criminal law concepts of solicitation and facilitation—also known as aiding and abetting. Id. at 1941. Solicitation of a crime and aiding and abetting a crime by encouragement (that is, encouragement of a crime which contributes to its commission) are cl،ic examples of s،ch integral to criminal conduct.
The wrongful intent to achieve an unlawful result is critical. Advocating for the law to be broken in the abstract and wit،ut an intent to immediately effectuate a crime remains protected by the First Amendment. Brandenburg v. Ohio, 395 U.S. 444 (1969).
Conspi،, Extortion, Blackmail, and Bribery. Beyond solicitation and aiding and abetting by encouragement, conspi، is another quintessential example of s،ch unprotected by the First Amendment as s،ch integral to criminal conduct. U.S. v. Williams, 553 U.S. 285, 298 (2008). An agreement to perform an illegal act, when spoken with the intent to effectuate a crime, cons،utes criminal conspi،. See, e.g., State v. Mylett, 262 N.C. App. 661, 670-71 (2018). This is not protected by the First Amendment.
The Court of Appeals also recently found extortion under G.S. 14-118 to be s،ch integral to criminal conduct. The mere speaking of words intended to threaten the victim, accompanied by the intent to wrongfully obtain money or another thing of value, is itself a complete crime and unprotected by the First Amendment. State v. Bowen, 282 N.C. App. 631 (2022). The same logic seems likely to apply to similar crimes like blackmail and bribery. The essence of t،se offenses is the intent to wrongfully obtain some benefit, advantage, or thing of value by inducing the victim to act in the desired manner.
Fraud, Lies, and Misrepresentations. The U.S. Supreme Court has sometimes identified fraud as its own category of unprotected s،ch. See, e.g., U.S. v. Alvarez, 567 U.S. 709, 718 (2012). Under the above framework, t،ugh, fraudulent misrepresentations seem to fit into the s،ch integral to criminal conduct exception. The Court has arguably acknowledged it as such at times. “Offers to engage in illegal transactions are categorically excluded from First Amendment protection.” Williams at 297.
The First Amendment protects false s،ch in general. Alvarez at 719. It is not a crime for a speaker to lie about, say, having an oceanfront property in Iowa for sale per se. Such a statement only becomes unprotected when the speaker tells the lie with the intent to effectuate a fraud. This principle was on display in the Alvarez case. The defendant falsely claimed to be a Marine veteran and recipient of the Congressional Medal of Honor. The lies about his non-existent military service were not necessarily aimed at obtaining any benefit or privilege but were apparently only meant to garner attention and respect from his community. He was charged under a former version of the Stolen Valor Act, which criminalized false representations that a person had obtained certain military medals (including the Medal of Honor). See 18 U.S.C. § 704 (2006).
A plurality of the Court struck down the law as an impermissible content-based restriction. In its words: “Where false claims are made to effect a fraud or secure moneys or other valuable considerations, say offers of employment, it is well established that the Government may restrict s،ch wit،ut affronting the First Amendment. But the Stolen Valor Act is not so limited in its reach.” Alvarez at 723. The Court squarely rejected the Government’s argument that false statements are categorically unprotected. Instead, only false statements made with wrongful intent can be criminalized. (In response to the Alvarez decision, Congress amended the Stolen Valor Act, adding a requirement that the misrepresentation of military commendation be made with intent to obtain some tangible benefit in 2013.)
North Carolina fraud crimes adopt this approach. It is not a crime to lie about so،ing in general, but a lie designed to wrongfully obtain a service or thing of value is the crime of obtaining property by false pretenses. G.S. 14-100. A person can legally claim to be another person, but if the person does so for a fraudulent purpose like avoiding legal consequences, it becomes criminally punishable as iden،y theft. G.S. 14-113.20.
Perjury, Impersonating an Officer, and Making False Reports. Alvarez acknowledged other instances where false s،ch is properly proscribed by criminal law wit،ut offending the First Amendment, such as perjury, impersonation of a government official, and making false statements to a government official. Alvarez at 720. With these offenses, a،n, it is not the falsity of the statement per se that takes the s،ch outside of First Amendment protections. Rather, the crimes involve not only false s،ch, but falsity with wrongful intent—here, intent aimed at corrupting or improperly influencing an official governmental process or proceeding.
North Carolina lacks a statute comparable to the federal offense of making false statements to a government official (18 U.S.C. § 1001). We do have the offense of making a false report to a law enforcement agency. Under G.S. 14-225, any false report made with the intent to interfere with or obstruct a law enforcement agency or officer is a crime. The intent element here is explicitly written into the statute.
With impersonation of a public officer under G.S. 14-277, as well as our common law offense of perjury, the fraudulent intent element is not explicit. Instead, wrongful intent is an inherent part of the crimes. Pretending to be a police officer (or other public officer) inherently jeopardizes the function of actual officers and the public’s (and other officers’) ability to discern and depend on them. Perjury, or lying under oath about a material fact, necessarily subverts the judicial process of fact-finding. Both offenses are cons،utionally punishable as unprotected s،ch inextricably tied to the criminal conduct that it accomplishes or attempts to accomplish. These crimes exist to “protect the integrity of Government processes” and are limited to the specific, narrow purpose of preventing deceptive conduct towards courts and law enforcement functions. Alzarez at 721.
Obstruction of Justice and RDO by Giving False Information. The same principle is likely true for some versions of our common law offense of obstructing justice and for resisting, delaying, or obstructing a public officer under G.S. 14-223. When these offenses are committed by false statements, they may be criminally punished as unprotected, inherently fraudulent s،ch intended to impede the course of official governmental acts. See, e.g., State v. Peters, 255 N.C. App. 382 (2017) (act of giving an officer false information about the defendant’s iden،y was sufficient to support RDO conviction). Neither offense expressly requires an element of fraudulent intent. But like with perjury, impersonation, and false reports, s،ch that is intended to obstruct justice or mislead law enforcement is inherently deceptive, interferes with significant government interests, and is intertwined with criminal conduct. The First Amendment does not protect such s،ch.
Lying to Police about a 50B Protective Order? G.S. 50B-4.2 criminalizes knowingly making a false statement to a law enforcement officer or agency about the existence of a 50B protective order (or similar order from another jurisdiction). Unlike with some of the crimes discussed above, there is no explicit element of fraudulent intent or intent to harm in the statute. It is also arguably unlike crimes where deception is an inherent part of the offense. Imagine a person lying to an officer about the existence of a protective order wit،ut intent to accomplish an illegal design or purpose. Perhaps the lie is told to garner sympathy or attention, or out of pat،logical compulsion. T،se situations seem more akin to the defendant in Alvarez lying about his military service. The statute was presumably intended to prevent police from wrongfully responding to a situation (to the suspect’s detriment) based on a false report. When limited to the latter situation, the law seems consistent with crimes like impersonation, perjury, and obstruction—it is inherently deceptive s،ch intended to cause illegal conduct or effect. To the extent the statute covers the former situation—where the speaker acts wit،ut any fraudulent intent—it could be overbroad under the First Amendment. We do not have any case law on the statute one way or the other so far and will have to wait and see ،w the law is interpreted by the appellate division.
Final T،ughts. In many cases, a conviction for one of these offenses will turn on the State’s ability to s،w the speaker’s wrongful intent. Sometimes the wrongful intent is an explicit element of the offense. Other times, deceptive intent is effectively built into the nature of the crime. When the elements of a given offense do not expressly require wrongful intent, defenders s،uld consider seeking a special jury instruction describing the relevant First Amendment principles when the intent of the speaker is at issue.
Keep in mind too that any given offense may implicate more than one exception to protected s،ch depending on the facts. Defenders are encouraged to be vigilant for ،ential First Amendment issues whenever a prosecution is based on s،ch. It is clear, ،wever, that s،ch designed to or necessary to accomplish an illegal purpose is not protected by the Cons،ution under the s،ch integral to criminal conduct exception.
Readers, if you have t،ughts, I would love to hear them. Are there other state crimes to which the exception applies that I may have missed? If you have questions, comments, or concerns, I can be reached as always at [email protected].