Argued September 3, 2014
Complaints received and sworn to in the Lawrence Division of the District Court Department on October 16, 2008.
Motions to dismiss were heard by Anthony P. Sullivan, J., Mark A. Sullivan, J., and James D. Barretto, J.; and the cases were tried before Michael A. Uhlarik, J.
The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
Robert S. Sinsheimer ( Lisa A. Parlagreco & Ronald J. Ranta with him) for William P. Johnson.
Valerie A. DePalma ( Susan H. McNeil with her) for Gail M. Johnson.
David F. O'Sullivan, Assistant District Attorney, for the Commonwealth.
Daniel J. Lyne & Theodore J. Folkman, for Eugene Volokh, amicus curiae, submitted a brief.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.
[21 N.E.3d 940] Cordy, J.
This case concerns the constitutionality of the criminal harassment statute, G. L. c. 265, § 43A ( a ), and its application to acts of cyberharassment among others. Specifically, we consider whether a pattern of harassing conduct that includes both communications made directly to the targets of the harassment and false communications made to third parties through Internet postings solely for the purpose of encouraging those parties also to engage in harassing conduct toward the targets can be constitutionally proscribed by the statute. We also consider whether, to
the extent that this pattern of conduct includes speech, that speech is protected by the First Amendment to the United States Constitution or is unprotected speech integral to the commission of the crime.
The defendants, William and Gail Johnson, were both convicted of criminal harassment. William was also convicted of making a false, or " frivolous," report of child abuse, G. L. c. 119, § 51A ( c ). Among other things, the defendants' conduct included posting information about the victims online along with false statements about items that the victims allegedly either had for sale or were giving away, with the object of encouraging unwitting third parties to repeatedly contact and harass the victims at their home and on their telephone. The defendants also anonymously sent hostile and ominous communications directly to the victims.
William claims that the criminal harassment statute is facially unconstitutional, arguing that it regulates protected speech [21 N.E.3d 941] and does not provide sufficient notice of the type of conduct that is proscribed. Additionally, both defendants argue that the statute is unconstitutional as applied to their conduct because they did not engage in " fighting words," an unprotected category of speech that we held could be constitutionally proscribed under the statute in Commonwealth v. Welch, 444 Mass. 80, 825 N.E.2d 1005 (2005), abrogated on another ground by O'Brien v. Borowski, 461 Mass. 415, 961 N.E.2d 547 (2012). Further, both defendants contend that their conduct did not meet the statutory requirements because their actions were not actually directed at the victims and there was inadequate evidence that their conduct caused any serious alarm to the victims. We conclude that the Legislature drafted a sufficiently specific statute that is not unconstitutional on its face; that the defendants' conduct included speech that was not protected by the First Amendment, but rather was integral to criminal conduct; and, accordingly, that the statute is not unconstitutional as applied to the defendants. We also conclude that the defendants' conduct as established at trial met all of the statutory requirements for a guilty verdict.
We summarize the facts that the jury could have
found, reserving certain details for our analysis of the issues raised
on appeal. The victims, James " Jim" J. Lyons, Jr., and his wife, Bernadette, have lived on the same street as the defendants in Andover since around 2000. In 2003, the defendants acquired a tract of land abutting the Lyonses' property and intended to subdivide and develop it. The Lyonses, along with other neighbors, objected to the proposed development and years of litigation ensued between the parties. By 2008, the relationship between the families had become strained and communication between them was infrequent.
Gerald Colton, a childhood friend of the Johnsons, did not know the Lyons family prior to 2008. Throughout the 1990s and early 2000s, William hired Colton to work as a handyman on an hourly basis and to identify lots for potential real estate development. If William later developed a lot Colton had identified, Colton would collect a finder's fee.
In either late February or early March, 2008, William telephoned Colton and enlisted him to play a series of " pranks" on Jim. The ideas for these " pranks" were generated in several ways: (1) William would directly instruct Colton or convey ideas through Gail; (2) the Johnsons would provide information about the Lyons family to Colton so that he could use this information to harass them; or (3) the Johnsons would prompt Colton to think of ideas.
Over the course of thirty-five days in late March and early April, 2008, the defendants, directly and through Colton, engaged in a series of acts directed at the Lyons family. The Commonwealth alleged four separate acts of harassment in addition to the false report of child abuse, and Colton was called as its key witness at the trial.
The first alleged act occurred on March 18, 2008, when Colton posted from his computer an advertisement that appeared on the Internet site " Craigslist." The advertisement [21 N.E.3d 942] provided the Lyonses' home telephone number and address and stated that there were free golf carts available at this location on a " first come, first serve" basis. The Lyonses did not own any golf carts and had never used Craigslist. When Bernadette arrived home at 2:30 p.m. that same day, there were strangers in both her driveway and on the street
near her home. These individuals informed her about the advertisement and explained that they were looking for golf carts. In total, about thirty to forty people arrived at the Lyonses' house that afternoon, causing Bernadette to be " scared" and " fearful."
When Jim arrived home later that evening, he telephoned the police, as Bernadette was in a state of " uneasiness" and Jim felt the incident was " really unusual" and " bizarre." Andover police Sergeant Chad Cooper responded and advised Jim to contact Craigslist to remove the advertisement and get the Internet protocol address for the computer that posted it. In Sergeant Cooper's presence, Jim received numerous telephone calls from people inquiring about the golf carts. When William learned that the Craigslist advertisement had been removed, he asked Colton to " put it back up" and Colton complied. After reposting, Colton testified that he and William " laughed" about it and Colton said that he would post another advertisement.
The second alleged act occurred on March 19, when Colton posted a different Craigslist advertisement, selling " my late son's" motorcycle and directing interested parties to call Jim on his cellular telephone after 10 p.m. Colton then told William about the posting. That night, Jim received " non-stop" telephone calls regarding the advertisement, approximately twenty every ten minutes. Sergeant Cooper responded again. These late night calls continued for months after the posting.
The third alleged act occurred one week later on March 26, when Colton sent an electronic mail (e-mail) message to the Lyonses from a fictitious account. The subject of the message read, " It's just a game for me," and the text stated, " Let The Games Begin!" The message contained Jim and Bernadette's personal identifying information, including names, home telephone number and address, Social Security numbers, e-mail address, bank name and location, and Jim's date of birth and cellular telephone number. At the bottom, the message stated: " Remember, if you aren't miserable, I aint happy! Let's Play." Colton testified that Gail had sent him an e-mail message with the Lyonses' personal information.
The following evening, William arrived at Colton's home and told Colton that he wanted to call and " turn [Jim] in." William had a piece of paper with a hotline telephone number written on
it and proceeded to use Colton's home telephone to call the Department of Children and Families (DCF) to file a false report alleging child abuse by Jim. William later telephoned Colton to report that a police cruiser and another vehicle were at the Lyonses' home.
Investigator Carrie Riley of the DCF testified that an after-hours " child abuse hotline" had received a call from someone using fictitious information and reporting that Jim was physically abusing his son. [21 N.E.3d 943] Riley and another investigator arrived at the Lyonses' home at 10:30 p.m. and said they had to examine their son. Jim testified that he and Bernadette were " panicked" and " frightened," but that, acting on the advice of their attorney, he awakened their son and permitted Riley to inspect him. Riley examined his body for marks and bruises. The DCF case was closed as the son denied any abuse and the investigators found no signs of it.
The fourth alleged act occurred on April 3, 2008, when Colton sent another anonymous e-mail message to the Lyonses from another fictitious e-mail account. The subject line was " Brian," and the text read, " What have you done James? ... or ... Why James? You stole the innocence of a young man." Shortly thereafter, Jim received a letter by postal mail purportedly sent from an individual named " Brian." Brian claimed to have worked for Jim when he was fifteen years of age, accused Jim of sexually molesting him as a teenager, and threatened to press charges against him. Colton testified that William told Colton that he had sent the letter. Even though the allegations were false, reading the letter was " very tough" and " absolutely alarmed [Jim]."
Throughout this entire time period, Colton consistently kept in contact with both defendants, letting them know what he was doing or had done to the Lyons family. William and Gail acquiesced ...