The Volokh Conspiracy
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So the Massachusetts Supreme Judicial Court held Tuesday in Commonwealth v. Bigelow (some paragraph breaks added):
It is true that the letters were sent to Michael [Costello] at his home, a location where the homeowner's privacy is itself entitled to constitutional protection. Cf. Rowan v. United States Post Office Dep't (1970). But Michael was an elected town official, and as Michael himself testified, receiving mail from disgruntled constituents is usual for a politician. A person "who decides to seek governmental office must accept certain necessary consequences of that involvement in public affairs … [and] runs the risk of closer public scrutiny than might otherwise be the case."
Here, given Michael's status as a selectman and the content of the letters, it cannot be said that Michael's "substantial privacy interests [were] invaded in an essentially intolerable manner." Cohen v. California (1971). See State v. Drahota (Neb. 2010) (defendant's abusive, outrageous, electronic mail messages to former professor running for State elective office, insofar as they did not qualify as fighting words, were protected speech not subject to criminal punishment under disturbing peace statute despite professor's previous instruction not to send further messages). See also United States v. Popa (D.C. Cir. 1999) (defendant's seven anonymous telephone messages left on United States Attorney's office telephone, containing racial epithets directed at United States Attorney and complaints about abusive police officers, constituted protected speech directed at public official; statute punishing anonymous telephone calls made with intent to annoy, abuse, threaten or harass held unconstitutional as applied to defendant, requiring reversal of conviction); State v. Fratzke (Iowa 1989) (First Amendment precluded defendant from being punished under criminal harassment statute for offensive, profane letter written to State trooper to protest speeding ticket where no "fighting words" were included). Contrast Hott v. State (Ind. Ct. App. 1980) (upholding defendant's conviction of making indecent telephone call based on vulgar calls made to police chief and prosecuting attorney at their respective homes late at night to complain about police sergeant).
Conceding that the letters contain protected political speech, the Commonwealth urges that, as in Commonwealth v. Johnson (2014), the defendant's speech was integral to a larger course of harassing conduct directed at Michael that caused Michael serious and reasonable alarm. The argument fails…. [I]n Johnson, … the defendants used their speech intentionally to initiate and carry out a plan of harassment of the victims through the conduct of (many) third parties. Here, however, the defendant's speech did not initiate or carry out any separate conduct that could be deemed harassing or illegal for an independent reason (i.e., a separate crime). The only conduct of the defendant's at issue is his writing and mailing the anonymous letters; as previously indicated, there was no evidence that the defendant's letters caused any other person to undertake any type of action in relation to Michael….
The defendant's speech directed at Susan [Costello] fairly considered, was not an expression of political views about a public official but rather a series of offensive personal comments about her and her husband Michael. But the fact that the speech may not be categorically protected as political speech does not mean that it therefore automatically qualifies as constitutionally unprotected speech. Given this court's interpretation of § 43A [the Massachusetts criminal harassment statute] and its underlying legislative intent, however, the speech must fit in a category of unprotected speech if the defendant's conviction of criminally harassing Susan based on the contents of his speech is to stand….
True threats represent a category of unprotected speech that our cases have noted is relevant to criminal harassment as defined and proscribed by § 43A…. [V]iewed in context, a jury reasonably could conclude that the defendant's speech directed at Susan that was contained in each of the last three letters qualified as true threats…
[S]ome of the specific comments in the letters, such as Susan's possible future need to have plastic surgery to change her appearance as a self-protective measure, her current need to move out of their home, provocative warnings to Susan about attending town meetings, and the reference to Michael having burned the home of his first wife with her in it, by themselves could be found to qualify as expressing a danger to Susan's personal safety, especially in her home.
Furthermore, the text of the letters must be viewed contextually. From Susan's perspective these letters were three out of a total of five letters written to her by a person who refused to identify himself or herself except as a "concerned citizen," and were sent at regular, two-to-three week intervals over two months—ceasing, it can be inferred, only after the defendant's son effectively revealed his father's identity. The anonymity of the letters made evaluation of the sender's intent impossible, and therefore could be found to have greatly increased the letters' potential to instill in Susan a fear of future harm, including physical harm, being visited on her in her home…. The repetitive mailing of anonymous letters to Susan's home—indicating, obviously, that the sender knew where she lived—could reasonably be found by a jury as supporting and indeed amplifying the message of threat to Susan's personal safety that the three letters contained….
[T]he failure to instruct the jury that where the complaint is based on incidents of pure speech, they must find the defendant's challenged speech constituted a true threat—and therefore was constitutionally unprotected speech—created a substantial risk of a miscarriage of justice. The defendant is entitled to a new trial on the count of the complaint alleging criminal harassment of Susan, a trial at the conclusion of which the jury are to be instructed on the unprotected character of speech that they must find the Commonwealth to have proved beyond a reasonable doubt, along with all the elements of the offense in order for the jury to find the defendant guilty of criminal harassment.
Three of the seven justices dissented, arguing that the letters to Susan Costello weren't properly seen as true threats, though they also would have concluded that some protected speech that doesn't qualify as true threats may nonetheless be punished by the stalking ban, because
The requirement of the criminal harassment statute that speech be "directed at" one victim, on at least three occasions, removes the majority of protected speech from the statute's reach, and ensures, in the plain language of the statute, that § 43A will not apply to any speaker who disseminates a political, religious, or other protected message to a general audience, albeit that the message contains vulgar, offensive, or disturbing speech.