Harassment or free speech? NC appeals court vacates no-contact order against protester

Do protests outside a county department head’s home and hundreds of text messages sent to a social worker in one night constitute harassment?

If so, would the county be justified in severely curtailing those activists’ rights to protest?

Those questions were at the heart of an appeal by Durham County activist Amanda Wallace, and last week, the N.C. Court of Appeals ruled it wasn’t yet clear.

The appeals court vacated a protective order taken out against the protester and her “followers” in 2022 — which had already expired — and ruled it should be sent back to the trial court for another hearing.

The order did not document the content of the protests and text messages, the court wrote, so the justices could not sort out whether they had a “legitimate purpose” or were intended to “terrorize.”

Wallace’s attorney, Dan Gibson, told The News & Observer after the ruling that Wallace’s protests were legitimate and should be protected under the First Amendment. He also said that the Durham County Department of Social Services didn’t have evidence to support its claims about the text messages.

“Let’s say hypothetically, that was all from her cell phone, right? That probably would be harassment,” Gibson said. “But I don’t think it was all from her cell phone, and I think it would be a wildly different case if it was 300 independent people texting someone: ‘Hey, you need to stop doing this,’ right? That sort of stuff happens with government officials all the time.”

What happened

Two years ago, the Department of Social Services got a no-contact order against Wallace, who staff members alleged was harassing them and making them scared to go to work.

Wallace, a former DSS employee, founded an advocacy group called Operation Stop CPS — an abbreviation for Child Protective Services — that argued social workers were targeting Black families and “kidnapping” their children.

Under state law, children can be removed from their homes when there is evidence of abuse or neglect. They may be placed in foster care if that happens, potentially permanently.

Wallace led street protests, including twice in 2022 near the home of the DSS director, who has since retired.

Three days after the second protest near his home, DSS sought a protective order to prevent Wallace and her “followers” from contacting the department and its employees.

It detailed the protests, as well as social media posts and text messages, including 300 sent to one social worker in a seven-hour span. The sender or senders of those text messages were not identified in the court order.

District Court Judge James T. Hill ruled that the actions constituted harassment and issued a permanent no-contact order. It allowed Wallace to “peacefully protest,” but stated she must remain 25 feet from the DSS building entrances, not use megaphones, and not speak when minors were leaving the building.

The American Civil Liberties Union supported Wallace in the case in an amicus brief, calling the order “vague and fundamentally unfair.”

“Understandably, the government doesn’t like what Ms. Wallace is saying, but she still has a right to say it, and say it loudly, even if it makes people uncomfortable,” Kristi Graunke, legal director of the ACLU of North Carolina Legal Foundation, said in an interview.

The DSS director at the time, Ben Rose, has since retired. The new director, Maggie Cveticanin, did not respond to a request for comment.

Nor did the department’s Raleigh-based private attorney in this case, Jacob Wellman, or staff in the county attorney’s office.

What happens next?

The Court of Appeals handed the case back to the trial court “with instructions to make specific findings of fact” that can settle whether this was indeed harassment, and to identify who sent the 300 text messages to a social worker.

It also throws out the injunction against Wallace’s “followers” — who were never identified in court or notified of the proceedings — because it would violate their rights if enforced.

The court briefly weighed claims that the restrictions violate Wallace’s freedom of speech, and rejected them by deciding the restrictions placed on Wallace were content-neutral, meaning they didn’t regulate what she said, but how she said it.

“Accordingly, this Court holds that the no-contact order at least satisfies intermediate scrutiny,” the ruling said.

Graunke called that analysis “concerning” and said she hopes Wallace will continue arguing her constitutionality claims, in part to help push back on what she fears is a growing trend of suppressing political speech in North Carolina and nationwide.

“It does seem like the government is picking and choosing what messages and protests to allow,” Graunke said.

The protective order against Wallace expired after one year, and it’s now been over two years, so what happens next is unclear, Gibson said. She has since stopped protesting.

Gibson called the Court of Appeals ruling “important.”

“If you’re going to stop someone from protesting, you need to be able to show that they crossed the line,” he said.

“There’s a difference between saying the president of the United States is an idiot and this policy is bad, versus saying I’m going to kill the president of the United States, right? One of those things is protected by the Constitution, and the other one isn’t.”