Commonwealth v. Johnson
470 Mass. 300
| Mass. | 2014Background
- William and Gail Johnson engaged Gerald Colton to post false internet ads and send anonymous emails/letters that disclosed the victims' personal data and made false accusations, intending to provoke third parties to contact and harass James and Bernadette Lyons.
- Over ~35 days in 2008, Colton posted Craigslist ads (free golf carts; a motorcycle), sent threatening/identifying emails, and mailed a false letter accusing Jim Lyons of sexual molestation; William also placed a false child-abuse report with DCF.
- Colton later pleaded guilty and testified that the Johnsons planned, supplied information for, and encouraged the harassment; he implicated the Johnsons in exchange for a cooperation agreement.
- The Johnsons were convicted of criminal harassment (G. L. c. 265, § 43A(a)); William was also convicted under the false-report statute (G. L. c. 119, § 51A(c)).
- On appeal the Johnsons raised: facial and as-applied constitutional challenges to § 43A(a); claims the statute only reached "fighting words" (per Commonwealth v. Welch); sufficiency challenges ("directed at" and "seriously alarms"); discovery and lost-evidence complaints; venue and speedy-trial arguments.
Issues
| Issue | Commonwealth's Argument | Johnsons' Argument | Held |
|---|---|---|---|
| Facial validity of § 43A(a) (overbreadth/vagueness) | Statute targets conduct and has scienter and harm elements, so it is not overbroad or vague | William: statute could reach protected speech and lacks fair notice | Statute is not facially overbroad or vague; elements (pattern, intent, serious alarm, reasonable-person distress, willfulness) provide sufficient specificity |
| As-applied First Amendment challenge (speech vs. conduct) | The communications here were integral to criminal conduct (harassment/cyberharassment) and therefore unprotected | Defendants: their postings were speech protected by the First Amendment; only "fighting words" were punishable under Welch | Speech used solely to implement the harassment (luring/encouraging third-party harassment, false accusations) falls outside First Amendment protection; Welch did not bar application to non‑fighting-words that are integral to crime |
| Sufficiency: "directed at" and "seriously alarms" elements of § 43A(a) | The Craigslist ads and other acts were intended to target the Lyonses and caused documented serious alarm; pattern of acts satisfies statute | Defendants: postings were aimed at the public (not the victims) and victims did not show serious alarm for individual acts | Evidence was sufficient: indirect acts that foreseeably and intentionally solicited harassment were "directed at" the victims; victims' testimony and corroboration met the demanding subjective "seriously alarms" standard (measured against the pattern) |
| Pretrial/disclosure, lost phone records, venue/speedy trial | Commonwealth timely disclosed Brady material and cooperation agreement; loss of Colton's phone records was non‑prejudicial; trial venue in Essex was proper; speedy-trial claim was inadequately developed | Defendants: prosecution delayed/disclosed late material and lost evidence (Colton's phone records), prejudicing defense; venue improper for false-report charge; denial of speedy-trial relief | Motions denied: delays/loss not materially prejudicial given other disclosed records and cross-examination opportunities; cooperation agreement and diary were disclosed before trial; venue and speedy-trial claims lacked prejudice or were waived |
Key Cases Cited
- Commonwealth v. Welch, 444 Mass. 80 (2005) (discussed scope of harassment statute and "fighting words")
- O'Brien v. Borowski, 461 Mass. 415 (2012) (clarified treatment of true threats under § 43A(a))
- Commonwealth v. McDonald, 462 Mass. 236 (2012) (statutory elements for criminal harassment)
- Commonwealth v. Martin, 467 Mass. 291 (2014) (standard of review for constitutional questions)
- Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949) (speech integral to criminal conduct is unprotected)
- United States v. Sayer, 748 F.3d 425 (1st Cir. 2014) (Craigslist postings used to induce third‑party harassment were unprotected speech under federal cyberstalking law)
- United States v. Petrovic, 701 F.3d 849 (8th Cir. 2012) (website postings integral to harassment fell outside the First Amendment)
- United States v. Osinger, 753 F.3d 939 (9th Cir. 2014) (similar statute upheld against overbreadth/vagueness challenge)
- United States v. Freeman, 761 F.2d 549 (9th Cir. 1985) (speech closely tied in time and purpose to a substantive evil becomes part of the crime)