Defamation / Reputation, Political Expression
Instytut Ekonomichnykh Reform, TOV v. Ukraine
Closed Mixed Outcome
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According to a Massachusetts Supreme Judicial Court decision that upheld the convictions against two people who directed a series of “pranks” against a local politician, posting false advertisements online can be considered criminal harassment unprotected by the First Amendment. The “pranks” in this case included two posts to Craigslist, an email to the politician, a false report of child abuse, and a mailed letter to the politician from a fictitious person claiming to have been abused by him. Their convictions were affirmed after a determination that the Massachusetts harassment statute did not facially violate right to free speech.
William and Gail Johnson were convicted for criminal harassment for a series of “pranks” they committed against a local politician, John Lyons. There were five incidents in all that, under the Massachusetts statute for criminal harassment, culminated in a single charge.
The first incident was an ad posted to Craigslist that offered “free golf carts” at Lyons’ residence and listed his home address. The second incident was another ad posted to Craigslist that offered Lyons’ “late son’s” motorcycle at a bargain price. That ad posted Lyons’ personal cell phone number and told interested viewers to call after 10 PM. Lyons received a high number of phone calls after 10 PM for several months after the ad was posted. The third incident was an email sent to Lyons containing personal information, such as his social security number. The email declared “[i]t’s just a game to me” and “if you aren’t miserable, I aint [sic] happy!” The fourth incident was a false report to Child Protective Services (CPS), which resulted in a CPS agent appearing at Lyons’ home at 10:30 PM to inspect Lyons’ son for signs of abuse. None were found. Finally, the fifth incident was a letter sent to Lyons’ home from a fictitious person who claimed that he had worked for and been sexually abused by Lyons when the fictitious person was fifteen years old. In the letter, the fictitious person threatened to press charges.
The relevant Massachusetts statute requires proof that “(1) the defendant engaged in a knowing pattern of conduct or speech, or series of acts, on at least three separate occasions; (2) the defendant intended to target the victim with the harassing conduct or speech, or series of acts, on each occasion; (3) the conduct or speech, or series of acts, were of such a nature that they seriously alarmed the victim; (4) the conduct or speech, or series of acts, were of such a nature that they would cause a reasonable person to suffer substantial emotional distress; and (5) the defendant committed the conduct or speech, or series of acts, ‘willfully and maliciously’.”
The Johnsons claimed that the statute violated their First Amendment right to free speech, both on its face and as applied to their case.
Before the Massachusetts Supreme Judicial Court, the Johnsons argued that the Massachusetts statute was both unconstitutionally over-broad and vague as a facial challenge. The Court disagreed, emphasizing that the statute criminalized a course of conduct not necessarily associated with speech. Citing Ninth Circuit precedent, the Court determined that because the statute “proscribes harassing and intimidating conduct, the statute is not facially invalid under the First Amendment.” The Court noted that the statute requires malicious intent on the part of the perpetrators and held that the statute described the appearance of “malicious intent” with clarity sufficient to be met by the incidents in the present case. The Court found that the statute gave sufficient notice to the public about what was prohibited and that the Johnsons had not produced evidence to demonstrate that the intentionality requirement of the statute (that a perpetrator must intend to harass) placed any deterrent on free speech.
As an “as applied” challenge, the Johnsons argued that even if the Massachusetts statute were facially valid, it still unconstitutionally restricted their freedom of speech. The Court disagreed, finding that because the sole purpose of their speech had been to harass, i.e., to perpetrate a criminal act, the speech was not protected speech under the First Amendment. The Court cited Giboney v. Empire Storage & Ice Co., a United States Supreme Court case that held that “it 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.”
The Court held that the evidence presented against the Johnsons at trial was sufficient to support the convictions.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Although the Johnsons’ acts were malicious and abhorrent, the Massachusetts Supreme Judicial Court’s holdings could be read to contract the freedom of expression because the Court separates conduct from speech, even though their conduct could have been considered a form of speech. The Court also found that, because the Johnsons intended to harass through their expression, the expression was not protected speech. This is not a new finding, however, so it does not technically contract expression. If the holding contracts freedom of expression, it does so only slightly through its application to false Craigslist postings.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
Decisions of the Massachusetts Supreme Judicial Court are binding on lower courts.
Let us know if you notice errors or if the case analysis needs revision.