Commonwealth v. Bigelow, 475 Mass. 554

Background

In 2011 Harvey Bigelow anonymously mailed five typewritten letters to Michael and Susan Costello after Michael was elected a Rehoboth selectman; letters contained insults, allegations of crimes, and provocative warnings.
Michael and Susan read the letters; Michael reported them to police. Susan testified she was terrified, cried, couldn’t sleep, and considered moving; Michael testified he was upset mainly because of the effect on his wife.
Bigelow was charged under G. L. c. 265, § 43A (criminal harassment) in two counts (one naming Michael, one naming Susan); jury convicted on both counts and he was sentenced to probation with conditions.
On appeal the primary legal question was whether the letters constituted constitutionally protected political speech (for Michael) or unprotected speech (for Susan), and whether jury instructions properly addressed the protected/unprotected speech distinction.
The Supreme Judicial Court reversed Michael’s conviction and dismissed that count (letters were political speech directed at an elected official and there was insufficient evidence Michael was "seriously alarmed"). It vacated Susan’s conviction and remanded for new trial because the jury was not instructed that the Commonwealth must prove the letters, if relied on as the sole basis, constituted unprotected speech (e.g., true threats).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the letters to Michael were constitutionally protected political speech and thus insufficient for § 43A conviction	Commonwealth: letters integrated with harassing conduct; they caused serious alarm and fit § 43A	Bigelow: letters were political criticism of an elected official and therefore protected speech	Reversed as to Michael — letters were political speech about public matters and evidence failed to show Michael was seriously alarmed; count dismissed
Whether letters to Susan could be punished under § 43A or were protected speech	Commonwealth: letters were threatening and could be unprotected (true threats), and manifested intent to alarm Susan	Bigelow: speech protected or at least not of a kind that statute may criminalize absent further conduct	Vacated and remanded as to Susan — a jury could find letters were true threats; but trial court failed to instruct jury that, when prosecution rests on speech alone, Commonwealth must prove speech was unprotected (true threat) beyond a reasonable doubt
Whether § 43A must be read to reach only constitutionally unprotected speech when based solely on speech	Commonwealth: statute may reach certain harassing speech; context matters	Bigelow: statute cannot criminalize protected speech; convictions based solely on speech must be limited	Court held § 43A, as interpreted in precedent, applies only to well-defined, constitutionally unprotected categories (e.g., true threats, fighting words, speech integral to criminal conduct) when prosecutions rest on speech alone
Adequacy of jury instructions concerning protected vs. unprotected speech	Commonwealth: general model instruction adequate	Bigelow: jury needed instruction that speech must be shown unprotected (true threat) if speech is sole conduct alleged	Court held instructions were inadequate for Susan count and created substantial risk of miscarriage of justice; new trial required

Key Cases Cited

Commonwealth v. Johnson, 470 Mass. 300 (discusses § 43A elements and application to speech)
Commonwealth v. Welch, 444 Mass. 80 (interprets § 43A to reach only constitutionally unprotected speech in pure-speech cases)
O’Brien v. Borowski, 461 Mass. 415 (clarifies categories of unprotected speech relevant to harassment law)
New York Times Co. v. Sullivan, 376 U.S. 254 (First Amendment protection for criticism of public officials)
Snyder v. Phelps, 562 U.S. 443 (scope of First Amendment protection for matters of public concern)
Rowan v. United States Post Office Dep’t, 397 U.S. 728 (privacy of the home and limits on unwanted communications)
Cohen v. California, 403 U.S. 15 (limits on banning speech to protect home privacy; distinction between protected and unprotected categories)
Virginia v. Black, 538 U.S. 343 (true threats doctrine and its protective rationale)
United States v. Stevens, 559 U.S. 460 (recognition of narrow categories of unprotected speech)