Tuesday, December 23, 2014

Massachusetts Supreme Court Upholds Cyber Harassment Statute and Conviction Against First Amendment Challenge

In its unanimous opinion today in Commonwealth v. Johnson, the Supreme Judicial Court of Massachusetts upheld the state's criminal harassment statute as applied to "conduct" that largely involved speech and often occurred using electronic means. 

The statute provides that whoever "willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person, which seriously alarms that person and would cause a reasonable person to suffer substantial emotional distress, shall be guilty of the crime of criminal harassment." 

465px-Guido_Rey_(Italian_-_The_Letter_-_Google_Art_Project
"The Letter" by Guido Rey circa 1908 via

Of particular First Amendment concern is the statute's provision that the

conduct or acts described in this paragraph shall include, but not be limited to, conduct or acts conducted by mail or by use of a telephonic or telecommunication device or electronic communication device including, but not limited to, any device that transfers signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electronic or photo-optical system, including, but not limited to, electronic mail, internet communications, instant messages or facsimile communications.

The facts are rather chilling, escalating from incidents that might properly be called "pranks" to incidents that were clearly malicious.  The defendants, the Johnsons, were involved in a protracted property and business dispute with the victims, the Lyons.  The defendants and their "handyman" placed a false advertisement on Craigslist, causing many people to arrive at the Lyons' home to collect free golf carts, and then another advertisement on Craigslist selling a motorcycle and directing interested persons to call Mr. Lyons after 10:00 pm.  Next, there was an email entitled "Let the Games Begin!" that included the victims' personal information, including social security number and banking information.  Then there was an an after-hours emergency call to the child abuse hotline reporting physical abuse to a child, resulting in a 10:30pm visit from child protective workers to the home.  And finally, there was an email, followed by a letter, to Mr. Lyons from a fictitious person accusing him of sexual molestation of the writer when the writer was 15. 

On appeal after conviction, the defendants argued that the statute violated the First Amendment, both on its face and as applied.  The court found that the facial challenge was not preserved, but addressed it by concluding that the statute provides adequate notice and safeguards that prevent its application to protected speech and noting that similar statutes have been upheld.  As to the as-applied challenge, the court found

The defendants' as-applied constitutional challenge also fails because the conduct in question was not protected speech, but rather a hybrid of conduct and speech integral to the commission of a crime . . . [and]  as applied to the defendants, does not implicate constitutionally protected speech rights.

The court rejected the argument that because the statute was not directed at "fighting words" it encompassed First Amendment protected speech.  Instead, the court explained that there were other categories of speech that were not protected under the Court's 1942 language in Chaplinsky v. New Hampshire regarding unprotected speech as words that are "no essential part of any exposition of ideas, and are of such slight social value as a step to truth' that whatever meager benefit that may be derived from them is 'clearly outweighed' by the dangers they pose."  As the Supreme Judicial Court of Massachusetts stated:

"Speech integral to criminal conduct is one such long-standing category that is constitutionally unprotected, directly applicable to the defendants' conduct here. . . ."

The court also evaluated the sufficiency of the evidence.  It again rejected the defendants' arguments.

The court's First Amendment analysis quotes the well-known principle that "[I]t has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed."  Clearly, the conduct - - - and speech - - -of the defendants gave little reason for the court to depart from this principle.

And even should the United States Supreme Court find the "facebook threats" conviction in Elonis v. United States, argued December 1, violates the First Amendment, it would most likely have little impact on the Johnsons' First Amendment claims.

https://lawprofessors.typepad.com/conlaw/2014/12/massachusetts-supreme-court-upholds-cyber-harassment-statute-and-conviction-against-first-amendment-.html

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