Woman Convicted for Mass-Mailing Sexual Misconduct Accusations About Former Teacher

From State v. Scatton, decided Jan. 30 by Judge Carl Taylor of the Connecticut Supreme Court, New Britain Jud. Dist. It seems pretty clearly wrong to me, but part of a broader trend in which states are reviving criminal libel through criminal harassment or cyberstalking laws (and without even a requirement that the prosecution show the allegations were false). More broadly, whether or not the concern is about reputation, it's part of a trend of using criminal harassment laws and harassment restraining orders to punish speech about a person rather than unwanted speech to the person; when that's challenged on First Amendment grounds, appellate courts generally uphold the First Amendment claim, but strange things can happen in trial court:

JG indicated that the defendant, Annette Scatton, was a former student who had been harassing him since 2018. JG indicated that Scatton had been sending harassing letters to funeral directors statewide.

"TO WHOM IT MAY CONCERN,

[JG], PROGRAM DIRECTOR OF FUNERAL SERVICE IN CONNECTICUT IS HAVING SEX WITH HIS MALE STUDENTS. ONE OF THE STUDENTS IS GAVIN DEMAURO.

IN ADDITION, HE IS SEXUALLY ACTIVE WITH MANY MEN IN THE FIELD OF FUNERAL SERVICE IN THE STATE OF CONNECTICUT. PLEASE - BE AWARE. HE IS EXTREMELY DECEITFUL AND DANGEROUS."

JG indicated to APD that he believed that the perpetrator was Annette Scatton. JG indicated that Scatton had been harassing him in a similar manner since 2018…. Ms. Scatton is charged with one count of harassment in the second degree, in violation of Conn. Gen. Stat. § 53a-183[(a),]

{A person is guilty of harassment in the second degree when with intent to harass, terrorize or alarm another person, and for no legitimate purpose, such person … [c]ommunicates with a person … in a manner likely to cause terror, intimidation or alarm ….}

The State has represented that the defendant sent the letters to all of the funeral directors in the State of Connecticut. In addition, the State also represented that the defendant sent the same letter to the complainant and to all forty-three faculty members of Godwin College. As a result of this conduct, some of the funeral directors who received a copy of this letter contacted JG….

Based upon the representations of the state, this case is not an issue … of the First Amendment. The state has indicated that the contents of the defendant's alleged letters and statements are not the subject of the prosecution and that the prosecution is based upon the defendant's conduct in sending this mass communication to many people….

The case law indicates that the harassing conduct may be proscribed, as opposed to communication. This includes harassing conduct by mail. See State v. Murphy (Conn. 2000) and State v. Nowacki (Conn. App. 2015).

Pursuant to State v. Nowacki, the court finds that the prosecution is based upon the harassing conduct by mail and not upon the defendant's communications…. The prime issue in this matter is whether it can be shown that the mass mailing of a letter by itself could likely to cause alarm to a person. The court finds that the mass mailing of a letter by itself could cause alarm based on the mailing, not the content. The mass mailing of this letter could result in alarm to the victim without reliance on the contentions of the letter. The conduct of the defendant in sending the letter to the funeral directors and faculty members could certainly have the effect of these persons contacting the victim, with resulting alarm to the victim.

The contents of the letter would not be relevant to the case in chief, only the fact that the defendant engaged in this mass mailing to people who be likely to contact the victim. However, the contents of the letter cause be used for circumstantial evidence concerning intent. See Gormley v. Director (2d Cir. 1980).

The court's claim that "the prosecution is based upon the harassing conduct by mail and not upon the defendant's communications" can't be right: If Scatton had mass-mailed political flyers urging people to vote for some candidate, for instance, that surely wouldn't have been punishable. What makes the letter "alarming" to the victim is precisely that its content is about him, and places him in a bad light.

That can be punished if the speech falls into a First Amendment exception, such as for true threats or for libel. But here there was no such finding; for instance, the court decision doesn't even consider whether the allegations were true. (I have no reason to think they were, but I don't see how one can punish such mass speech without a finding of falsehood, and the other elements needed under libel law.)