MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

L. PATRICK AULD, Magistrate Judge.

This case comes before the undersigned United States Magistrate Judge for a recommended ruling on Defendant's Motion to Dismiss (Docket Entry 6; see also Docket Entry 7 (Brief in Support of Motion to Dismiss ("Defendant's Brief")). (See Docket Entry dated Dec. 15, 2016.) For the reasons that follow, the Court should deny the instant Motion.1

BACKGROUND

Plaintiff's Complaint alleges claims of alienation of affection and criminal conversation and seeks an award of compensatory and punitive damages, as well as attorney fees. (See Docket Entry 3.) Under North Carolina common law, for an alienation of affection claim, "a plaintiff must prove (1) that [the plaintiff] and [his or her spouse] were happily married, and that a genuine love and affection existed between them; (2) that the love and affection so existing was alienated and destroyed; and (3) that the wrongful and malicious acts of the defendant produced and brought about the loss and alienation of such love and affection." McCutchen v. McCutchen, 360 N.C. 280, 283, 624 S.E.2d 620, 623 (2006) (internal brackets and quotation marks omitted). For a criminal conversation claim, North Carolina's common law requires proof that "the plaintiff was lawfully married . . . and that during the existence of such marriage . . . the defendant [] had sexual intercourse with [the] plaintiff's [spouse] . . . ." Bryant v. Carrier, 214 N.C. 191, 194-95, 198 S.E. 619, 621 (1938). Effective October 1, 2009, North Carolina statutorily limited alienation of affection and criminal conversation claims from their full reach under the common law, by exempting from liability conduct that (although at a time when the plaintiff and the plaintiff's spouse remained married) "occurs after the plaintiff and the plaintiff's spouse physically separate with the intent of either the plaintiff or [the] plaintiff's spouse that the physical separation remain permanent." N.C. Gen. Stat. § 52-13(a).

To support alienation of affection and criminal conversation claims in this case, the Complaint alleges:

1) "Plaintiff and his wife . . . were lawfully married to each other on May 27, 1995" (Docket Entry 3 at 1) and they remained "happily married from the date of their marriage until on or before Sunday, April 26, 2015, when [] Defendant and Plaintiff's wife engaged in sexual intimacy" (id. (emphasis added); see also id. ("[P]rior to Sunday, April 26, 2015, a genuine love and affection existed between Plaintiff and his wife."));

2) "on or before Sunday, April 26, 2015, and then following until [Plaintiff and his wife] separated on September 7, 2015, [] Defendant destroyed and alienated the love and affection existing between Plaintiff and his wife with multiple daily phone calls, visiting [] Plaintiff's wife, having sexual intercourse with Plaintiff's wife, arranging overnight business meetings with [] Plaintiff's wife, and purposely interfering with [] Plaintiff's marriage" (id. at 2 (emphasis added); see also id. ("Plaintiff and his wife separated on September 7, 2015, as a result of Defendant's wrongful and malicious conduct."));

3) "Plaintiff expressed to [] Defendant [Plaintiff's] outrage and disapproval of the continued sexual intercourse, contact, and meetings between Defendant and Plaintiff's wife" (id. (emphasis added); see also id. ("Defendant was well aware that Plaintiff and Plaintiff's wife were lawfully married at the time of Defendant's wrongful and malicious acts.")); and

4) "the love and affection that Plaintiff and his wife enjoyed was destroyed and alienated by the blatant refusal of Defendant to cease seeing, visiting, having sexual intercourse with, and communicating with Plaintiff's wife" (id. (emphasis added); see also id. ("Defendant's wrongful and malicious conduct is the cause of the alienation of the love and affection that once existed between Plaintiff and his wife.")).

DISCUSSION

Defendant has "move[d] the Court to dismiss the criminal conversation, alienation of affections, and [related] attorney fees claims for relief filed against him and to invalidate the common law torts of criminal conversation and alienation of affections pursuant to [Federal] Rule [of Civil Procedure] 12(b)(1) and 12(b)(6) . . . ." (Docket Entry 6 at 1.)2 More specifically, Defendant's instant Motion asserts that:

1) "[c]riminal conversation is unconstitutional both facially and as applied to the facts set out in [] Plaintiff's [C]omplaint as a violation of: due process liberty and privacy interests[ and] equal protection rights guaranteed by the Fourteenth Amendment to the United States Constitution" (id. (emphasis added)); and

2) "[a]lienation of [a]ffections is unconstitutional both facially and as applied to the facts set out in [] Plaintiff's [C]omplaint as a violation of due process liberty and privacy interests[ and] the equal protection rights guaranteed by the Fourteenth Amendment to the United States Constitution, [as well as] freedom of speech rights guaranteed by the First Amendment to the United States Constitution" (id. at 1-2 (emphasis added)).3

Fourteenth Amendment Due Process

Defendant's Fourteenth Amendment due process challenge to North Carolina's torts of alienation of affection and criminal conversation relies on Lawrence v. Texas, 539 U.S. 558 (2003). (See Docket Entry 7 at 3-13.) In that case, the United States Supreme Court reversed the convictions of two men for violating a Texas statute that criminalized homosexual conduct, concluding that "[t]heir right to liberty under the Due Process Clause gives them the full right to engage in their conduct [i.e., sexual practices common to a homosexual lifestyle] without intervention of the government." Lawrence, 539 U.S. at 578. According to Defendant, "[t]he present case is controlled by Lawrence in that the State is regulating the personal lives of two consenting adults [i.e., Defendant and Plaintiff's spouse] by permitting private rights of action [by Plaintiff] to impose punishment in the form of monetary liability and a civil fine in the form of punitive damages." (Docket Entry 7 at 5; see also id. at 7 ("The intimate conduct between Defendant [] and [Plaintiff's spouse] falls within the fundamental right of privacy and autonomy protected by the U.S. Constitution as held in Lawrence."), 11 ("[T]he right implicated [here] is the right outlined in Lawrence for an individual to engage in private, consensual, sexual conduct.").) In fact, Lawrence does not invalidate North Carolina's alienation of affection and criminal conversation torts for at least two reasons.

First, the Lawrence Court expressly delimited its decision to "attempts by the State, or a court, to define the meaning of the relationship [between individuals] or to set its boundaries [A] absent injury to a person or [B] abuse of an institution the law protects." Lawrence, 539 U.S. at 567 (emphasis added); see also id. at 578 ("[This case] does not involve persons who might be injured . . . ."); Muth v. Frank, 412 F.3d 808, 818 (7th Cir. 2005) ("Lawrence did not announce a fundamental right of adults to engage in all forms of private consensual sexual conduct."); Nebraska v. Van, 268 Neb. 814, 826, 688 N.W.2d 600, 615 (2004) ("The Lawrence Court did not extend constitutional protection to any conduct which occurs in the context of a consensual sexual relationship. Rather, the [Supreme] Court indicated that State regulation of such conduct was inappropriate `absent injury to a person or abuse of an institution the law protects.' In addition, it specifically noted that the case it was deciding did not involve `persons who might be injured.'" (emphasis in original) (internal citation omitted) (quoting Lawrence, 539 U.S. at 567, 578)). In contrast, North Carolina's torts of alienation of affection and criminal conversation directly address conduct which:

A) injures a person (the victim spouse), see Misenheimer v. Burris, 360 N.C. 620, 624, 637 S.E.2d 173, 176 (2006) ("[D]amages for mental anguish are recoverable in cases of criminal conversation. Wounding a man's [or woman's] feelings is as much actual damages as breaking his [or her] limb. The difference is that one is internal and the other external; one mental, the other physical. At common law compensatory damages include, upon principle, and upon authority, salve for wounded feelings. . . . [The] plaintiff testified that the actions of his wife and [the] defendant broke his heart very badly. As Blackstone described the civil injury in cases of criminal conversation, surely there can be no greater." (internal brackets, citation, ellipsis, and quotation marks omitted)); Cottle v. Johnson, 179 N.C. 426, 429, 102 S.E. 769, 770 (1920) ("[T]he finding . . . that the defendant alienated the affections of the plaintiff's wife . . . entitled [him] to recover compensatory damages, which include loss of the society of his wife, loss of her affection and assistance, as well as for his humiliation and mental anguish[.]"); and

B) abuses a legally-protected institution (marriage), see McCutchen, 360 N.C. at 284, 624 S.E.2d at 624 (noting that "North Carolina's public policy favor[s] the protection of marriage"); Darnell v. Rupplin, 91 N.C. App. 349, 351, 371 S.E.2d 743, 745 (1988) ("A claim for alienation of affections . . . is based on transactions . . . that harm the marital relationship."); Sebastian v. Kluttz, 6 N.C. App. 201, 209, 170 S.E.2d 104, 109 (1969) (observing that criminal conversation claims vindicate "fundamental right that flows from the relation of marriage, and one that must be maintained inviolate for the well-being of society, of one spouse to have exclusive marital intercourse with the other").

Second, the Lawrence Court invalidated the Texas homosexual conduct statute not just because the conduct at issue merited protection under the Due Process Clause, but also because "[t]he Texas statute further[ed] no legitimate state interest which can justify its intrusion into the personal and private life of the individual." Lawrence, 539 U.S. at 578 (emphasis added). Accordingly, even if the Due Process Clause shields to some degree adulterous conduct of the sort the Complaint alleges against Defendant (a conclusion which, as explained above, the plain language of Lawrence does not support), this Court could strike down the alienation of affection and criminal conversation torts only if they did not further a legitimate state interest.4

North Carolina, however, possesses a legitimate interest in:

A) affording recourse for injury, see Gertz v. Robert Welch, Inc., 418 U.S. 323, 342 (1974) (recognizing states' "legitimate interest in redressing wrongful injury"); Lewis v. Lycoming, 73 F.Supp.3d 539, 543 (E.D. Pa. 2014) ("[A state] has an interest in promoting recovery by providing a full measure of damages at least for its citizens."); Citibank, N.A. v. Barclays Bank, PLC, 28 F.Supp.3d 174, 184 (S.D.N.Y. 2013) ("Compensating injured parties for their losses is a legitimate state interest . . . ."); and

B) protecting the sanctity of marriages, see Obergefell v. Hodges, ___ U.S. ___, ___, 135 S.Ct. 2584, 2601 (2015) ("[The Supreme] Court's cases and the Nation's traditions make clear that marriage is a keystone of our social order."); In re Bledsoe, 569 F.3d 1106, 1112 (9th Cir. 2009) (citing "[t]he state's traditional interest in the regulation of marriage"); Potter v. Murray City, 760 F.2d 1065, 1070 (10th Cir. 1985) ("Monogamy is inextricably woven into the fabric of our society. It is the bedrock upon which our culture is built."); see also Epstein v. Epstein, 843 F.3d 1147, 1153 (7th Cir. 2016) (Posner, J., concurring) (noting "that adultery remains a crime in 20 of the nation's 50 states").

Moreover, by allowing alienation of affection and criminal conversation claims, North Carolina reasonably furthers the foregoing, legitimate interests, because such tort actions permit victim spouses to obtain redress and discourage third-parties from wrongfully interfering in marriages (particularly through adulterous conduct). See Carlson v. Green, 446 U.S. 14, 21 (1980) ("It is almost axiomatic that the threat of damages has a deterrent effect . . . ."); Pavelka v. Carter, 996 F.2d 645, 650 (4th Cir. 1993) (describing "traditional tort system goals [as] compensating victims and deterring misconduct"); Jones v. Reagan, 696 F.2d 551, 554 (7th Cir. 1983) ("[T]ort law . . . has a deterrent as well as a compensatory function."); Awalt v. Marketti, No. 11C6142, 2012 WL 1161500, at *13 (N.D. Ill. Apr. 9, 2012) (unpublished) ("Deterrence is a well-founded part of our system of tort liability and a proper objective of bringing suit; the common law being an efficient system of rules that has evolved to deter negligent, willful, and reckless conduct . . . ."); Bentzlin v. Hughes Aircraft Co., 833 F.Supp. 1486, 1493-94 (C.D. Cal. 1993) ("First, tort law is based in large part on deterrence . . . . A second purpose of tort law is to punish tortfeasors. . . . Finally, tort law is intended to provide a remedy to innocent victims.").5 In sum, the Due Process Clause (as construed in Lawrence) does not invalidate North Carolina's alienation of affection and criminal conversation torts, because:

1) the Lawrence Court expressly exempted from its holding sexual conduct (such as the adulterous conduct alleged in the Complaint) that injures a person (i.e., a victim spouse) and/or that abuses a lawfully-recognized institution (i.e., marriage); and

2) alienation of affection and criminal conversation torts further North Carolina's legitimate interests in providing recourse for victim spouses and deterring wrongful intrusions into marital relationships (unlike the criminal statute in Lawrence, which the Supreme Court found did not further any legitimate state interest).

First Amendment Freedom of Speech

The instant Motion alternatively asks the Court to declare North Carolina's alienation of affection tort (but not its criminal conversation tort) "unconstitutional both facially and as applied to the facts set out in [] Plaintiff's [C]omplaint as a violation of . . . freedom of speech rights guaranteed by the First Amendment. . . ." (Docket Entry 6 at 1.)6 In support of that position, Defendant's Brief states that alienation of affection "has no requirement that an adulterous relationship occur between the defendant and [the] plaintiff's spouse. Instead, it only requires that there be `active participation, initiative, or encouragement on the part of the defendant in causing one spouse's loss of the other spouse's affections.'" (Docket Entry 7 at 14 (quoting Heller v. Somdahl, 206 N.C. App. 313, 316, 696 S.E.2d 857, 861 (2010)).)

From that premise, Defendant's Brief reasons that an alienation of affection claim could arise from "the mere expression of protected speech from one individual to another regarding the plaintiff spouse's relationship with that person. A person can therefore expose themselves [sic] to liability and punishment for honestly speaking about their [sic] feelings for a married person." (Id.; see also id. at 15 ("[A] co-worker who implores a fellow co-worker to leave their [sic] spouse through the use of opinions and the expression of factually correct information would still be subject to punishment in the form of civil liability.").) This freedom of speech challenge fails for at least two reasons.

First, Defendant cannot maintain an "as applied" attack based on the "protected speech" theory articulated in Defendant's Brief, because the Complaint does not seek to hold Defendant liable "for honestly speaking about [his] feelings for [Plaintiff's spouse]" (id. at 14) (or "implor[ing] a fellow co-worker to leave [her] spouse through the use of opinions and the expression of factually correct information" (id. at 15)); to the contrary, the Complaint alleges that Defendant committed alienation of affection by having sexual relations with Plaintiff's spouse (Docket Entry 3 at 1-2). "In asserting his as-applied challenge, of course, [Defendant] cannot obtain relief based on arguments that a differently situated person might present, or based on other situations not before the Court." United States v. Moore, 666 F.3d 313, 319 (4th Cir. 2012) (internal citation and quotation marks omitted).

Second, Defendant has not made the showing needed to sustain either of the two types of First Amendment "facial" challenges. "To succeed in a typical facial attack, [Defendant] would have to establish that no set of circumstances exists under which [North Carolina's alienation of affection tort law] would be valid, or that [such law] lacks any plainly legitimate sweep." United States v. Stevens, 559 U.S. 460, 472 (2010) (internal citation and quotation marks omitted). Defendant's Brief establishes no such thing and instead effectively concedes that the First Amendment's speech protections do not prohibit alienation of affection claims based on the conduct the Complaint alleges against him (i.e., adultery). (See Docket Entry 7 at 14-15.)7

"In the First Amendment context, however, th[e Supreme] Court recognizes a second type of facial challenge, whereby a law may be invalidated as overbroad if a substantial number of its applications are unconstitutional, judged in relation to the [law's] plainly legitimate sweep." Stevens, 559 U.S. at 473 (emphasis added) (internal quotation marks omitted); see also Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 800 (1984) ("[T]he mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge."). "The first step in overbreadth analysis is to construe the challenged statute; it is impossible to determine whether a statute reaches too far without first knowing what the statute covers." United States v. Williams, 553 U.S. 285, 293 (2008). As quoted above, Defendant's Brief implies that North Carolina law extends liability for alienation of affection (too) broadly, because it "only requires that there be `active participation, initiative, or encouragement on the part of the defendant in causing one spouse's loss of the other spouse's affections.'" (Docket Entry 7 at 14 (quoting Heller, 206 N.C. App. at 316, 696 S.E.2d at 861); see also id. at 14-15 (arguing that North Carolina permits an alienation of affection claim against a person who "honestly speak[s] about [his or her] feelings for a married person" or a "co-worker who implores a fellow co-worker to leave [his or her] spouse through the use of opinions and the expression of factually correct information").)

In fact, North Carolina law cabins alienation of affection claims within a much more limited sphere than Defendant has suggested, by requiring proof of adultery or some other conduct manifesting a culpable mental state:

Sebastian, 6 N.C. App. at 206, 170 S.E.2d at 106 (emphasis added) (internal citations and quotation marks omitted); see also McCutchen, 360 N.C. at 283, 624 S.E.2d at 623 (requiring proof "that the wrongful and malicious acts of the defendant produced and brought about the loss and alienation of [the] love and affection [of the plaintiff's spouse]" (emphasis added) (internal brackets and quotation marks omitted)).8 Moreover, North Carolina law treats this malicious, mens rea element as immunizing third-parties from liability for simply offering good-faith advice. See Bishop v. Glazener, 245 N.C. 592, 597, 96 S.E.2d 870, 874 (1957) ("[A] parent may advise and assist his or her child in respect to the latter's marital relations without liability to the other spouse for alienation of affections, although separation results, provided such advice and aid were in good faith, based on a reasonable belief that the child's welfare makes them necessary, and were not from malice or other improper motive."); see also id. at 596, 96 S.E.2d at 873 ("It is fundamental to a recovery against a third person that the alienation of affections resulted from [the person's] malicious interference." (emphasis added)); Sebastian, 6 N.C. App. at 206, 170 S.E.2d at 106 (recognizing that conduct that "purposely alienates [the] affections" of the plaintiff's spouse does not trigger liability if it qualifies as "privilege[d]").

Given that North Carolina law (A) restricts alienation of affection claims to "malicious acts," McCutchen, 360 N.C. at 283, 624 S.E.2d at 623, further defined as adultery or other "injustifiable conduct," Sebastian, 6 N.C. App. at 206, 170 S.E.2d at 106 (internal quotation marks omitted), undertaken with an intent "to do wrong without legal excuse," id. (internal quotation marks omitted), or with "reckless indifference to the rights of others," id. (internal quotation marks omitted), and (B) bars liability for communications made in "good faith," Bishop, 245 N.C. at 597, 96 S.E.2d at 874, or deemed "privilege[d]," Sebastian, 6 N.C. App. at 206, 170 S.E.2d at 106, Defendant cannot show that "a substantial number of [the] applications [of North Carolina's alienation of affection law] are unconstitutional, judged in relation to the [law's] plainly legitimate sweep," Stevens, 559 U.S. at 473 (emphasis added) (internal quotation marks omitted). As a result, the Court should deny Defendant's First Amendment facial overbreadth challenge. See Members of City Council, 466 U.S. at 799 ("In the development of the overbreadth doctrine the [Supreme] Court has been sensitive to the risk that the doctrine itself might sweep so broadly that the exception to ordinary standing requirements would swallow the general rule. In order to decide whether the overbreadth exception is applicable in a particular case, [the Supreme Court] ha[s] weighed the likelihood that [a law's] very existence will inhibit free expression. There comes a point where that effect — at best a prediction — cannot, with confidence, justify invalidating a [law] on its face and so prohibiting a State from enforcing the [law] against conduct that is admittedly within its power to proscribe." (internal brackets and quotation marks omitted)).

Simply put, Defendant's First Amendment freedom of speech-based, as-applied and facial attacks on the North Carolina tort of alienation of affection lack merit.

CONCLUSION

Defendant has not established that Plaintiff's Complaint fails as a matter of law.

IT IS THEREFORE RECOMMENDED that the Court deny Defendant's Motion to Dismiss (Docket Entry 6).