The Massachusetts Supreme Judicial Court (SJC) has upheld the conviction of an Andover couple for violation of the Commonwealth’s criminal harassment statute by, among other things, posting fake ads on Craigslist. In brushing aside the couple’s challenges to the statute, the Court emphatically held that the First Amendment does not provide a defense to allegations of criminal harassment simply because the defendant uses words to carry out the harassment. The Court also rejected the defendants’ attempt to “launder their harassment . . . through the internet to escape liability.”
“Pranks” Against “Mr. Meany”
The facts are a bit skin-crawling. The defendants, William and Gail Johnson, owned a tract of land in Andover and made plans to develop it for profit. The owners of the abutting tract – Jim and Bernadette Lyons – opposed the development plan, and the result was litigation between the long-time neighbors. In the midst of this contentious situation, the Johnsons called in their “handyman,” Gerald Colton, and initiated a series of “pranks” against the Lyons family, and in particular Jim Lyons (who the Johnsons referred to in emails as “Mr. Meany”). These pranks, which occurred within a 35-day period in March and April 2008, included:
- Colton posted a Craigslist ad for “free golf carts” at the Lyons’ home on a “first come, first serve” basis, resulting in approximately 40 strangers showing up at the house and snooping around for their free golf carts.
- The next day, Colton posted another Craigslist ad, this one purporting to sell “my late son’s motorcycle” and asking interested parties to call Jim Lyons on his cell phone after 10 p.m., resulting in months of late-night calls.
- A week later, Colton sent an email to Lyons from a fictitious account. The text stated “Let the games Begin,” followed by a raft of personal information, including the Lyons family’s social security numbers, bank information and dates of birth. The end of the email read: “Remember, if you aren’t miserable, I aint happy! Let’s Play.”
- The following week, Colton set up another fictitious account and sent Jim Lyons an enigmatic email asking him why he “stole the innocence of a young man” named Brian. Shortly after this email, Jim received a letter from “Brian” (actually written by Johnsons – there was no “Brian”) falsely accusing Jim of sexually molesting a minor.
As devious as these “pranks” had been, the Johnsons appear not to have developed a plan for covering their tracks. Within weeks, the police traced the emails and Craigslist ads to Colton, who promptly gave up the Johnsons in exchange for a plea agreement.
The Johnsons were charged with, among other things, criminal harassment under G.L. c. 265 § 43A. That statute requires proof that the defendant (1) “willfully and maliciously” (2) engaged in “a knowing pattern of conduct or speech, or a series of acts, on at least three separate occasions,” (3) that on each occasion intentionally “targeted” the victim (4) with the type of conduct that would cause a reasonable person substantial emotional distress and (5) that in fact caused “serious alarm.” A jury convicted both defendants. William Johnson was also convicted of making a fraudulent report of child abuse against the Lyons family. William Johnson got two and a half years; Gail Johnson got two years.
First Amendment Appeal
The Johnsons appealed to the Massachusetts Appeals Court, and the SJC transferred the case to itself. Three of the Johnsons’ appellate arguments involved First Amendment and speech issues.
First, the Johnsons argued that the criminal harassment statute was unconstitutionally overbroad on its face because it can be read to punish pure speech (e.g., three instances of harassing speech). The Court held that, even though the statute proscribes a course of harassing conduct that might include speech, that conduct is “not necessarily associated with speech.” In addition, the statute carried substantial scienter elements, including the intentional targeting of a particular victim and the malicious intent to cause harm. These elements acted as safeguards to prevent any overbroad or unconstitutional use of the statute in order to punish protected speech.
The Johnsons also claimed that, if the statute was not unconstitutional on its face, it was unconstitutional as applied to them. This argument was premised on the defendants’ assertion that, under SJC precedent, “fighting words” were the only category of speech that could be subject to content-based restrictions. By contrast, they argued, the Craigslist postings were not “fighting words,” but simply non-defamatory falsehoods incapable of provoking violence. The Court rejected this narrow interpretation of its precedent and held that “speech integral to criminal conduct,” even if not comprised of “fighting words,” could serve as the basis for a criminal harassment conviction.
Finally, the Johnsons argued that the statute’s requirement that the victim be “targeted” by the defendant on each of three occasions was not met in the case of the Craigslist ads. Rather, they argued, the Craigslist ads were targeted at the internet and the public in general. The Court found this argument unconvincing. Even though the defendants’ “methods were indirect,” the information contained in the Craiglist ads was directed solely at the Lyons family. “Essentially,” the Court continued, the intent “of the false advertisements was to create a marketplace for the guaranteed harassment of the victims.”
The full SJC opinion, authored by Justice Robert J. Cordy and issued on December 23, 2014, is available here.