Lead Opinion
In 2013, the defendant Harvey Bigelow was convicted of two counts of criminal harassment under G. L. c. 265, § 43A (§ 43A). The charges were based on five letters the defendant allegedly wrote and sent to Michael Costello and Susan Costello
Background. In April, 2011, Michael was elected as a selectman of the town. Between May 9 and July 23, 2011, at approximately two-week intervals, the Costellos received five anonymous, typewritten letters that were mailed to their home. The letters were addressed to both Costellos or to Susan, and all were authored by the defendant.
The first letter, received around May 9, was sent to the Costellos in an envelope addressed to “Mr. and Mrs. Costello,” but the salutation in the letter itself mentioned only Michael. Although the letter included a variety of personal insults directed to and at Michael, in significant part it consisted of statements criticizing Michael’s performance as a selectman, including, as its opening salvo, the following: “Michael Costello — The biggest fucking loser I have ever met. You should be utterly ashamed
“This is how it will go down real soon — you will be arrested at town meeting, relieved of all your town positions, and ultimately be sent to prison as a [two] time loser convicted felon. I’m guessing maybe [ten] years this time if nothing else comes out. Sound good you fucking asshole. Can’t wait to see you handle Monday night. We will all be staring at you!!!!!!!!!! This letter will be all over town by then as well as at selectmens’ [sic] meeting. You really fucked up this time Mikey boy.”5
The envelope of the second letter, sent on May 26, was addressed to Susan, but again the text of the letter itself appeared to be directed to Michael. The letter referred to Michael’s “criminal mess” and stated that Michael “is indeed being investigated by not only the inspector general, but also by the Attorney General and the FBI”; that Michael “is guilty of fraud . . . [and] screwed a nice old senior citizen ... out of his house by scamming the lottery”; and that he “was indeed convicted of stealing from Horner Millwork and sentenced to three years in prison plus probation and restitution ... we will have [the public record of his conviction] at Tuesday’s meeting.” The letter exhorted Michael to “resign immediately or else. Or be put on administrative leave — pending investigation,” and later repeated, “resign immediately I suggest.” The letter added, “[T]his is such a good letter I think I will send it around and post it at Vino’s.”
Attached to either the second or the third letter was a separate, handwritten note that stated:
*557 “Mikey + Susan —
“Please forward your new address AFTER YOU MOVE. I know where you can buy a tent or maybe you have $245,000 to buy that house in our development.
“The Homer boys [and] the newsmen will be there Tues[day]. I wouldn’t show up if I were you.
“A Concerned Citizen”
The third and fourth letters, respectively sent June 15 and sometime near or at the end of that month, were each sent in an envelope addressed to Susan, and the salutation of each letter was also directed to her. The third letter began, “I am sure you are not surprised to receive another letter regarding the disgusting cheat you are married to. . . . [W]hat were you thinking getting tied up with such a scum bag.” Following another three paragraphs of derogatory comments about Michael and rhetorical questions asking how Susan could defend him, the letter ended with a suggestion that Susan would need to move out of her home: “Have you selected a new place to live? Maybe now would be a good time to preplan your future. ... If I were you, I’d spend less time defending this worthless human being and more time worrying about yourself.”
The fourth letter enclosed a copy of a page from a newspaper containing a critical letter to the editor written by a retired attorney about Michael’s “abuses” and the fact that Michael was being investigated by the Attorney General and other State authorities; across the copy was a handwritten comment stating, “Suzie — Preview of Coming Attractions” (emphasis in original). The fourth letter itself stated, “The authorities will continue to hound [Michael] until you and he can’t stand it anymore. Maybe you will have to live like Whitey Bulger frequenting plastic surgeons to have any hope of a peaceful lifestyle. The only difference is Whitey has unlimited funds and you don’t.”
The envelope containing the fifth letter was addressed to “Susan ‘The Maid’ Costello” and was sent July 23. The salutation of the letter itself was addressed to “Lorraine,” but handwritten across the top was a message stating, “Hey Sue — why don’t you come to the meeting on Mon.” The letter asked if Lorraine was “screwing” Michael, and stated that “[w]ord about town is that he is screwing the assistant town clerk or treasurer, or maybe both. There are pictures being circulated that prove it.” The letter then
After receiving and opening the first letter, Michael brought it to the police. Thereafter, the police began an investigation and Michael delivered all five letters to the police department, receiving back copies of the letters from the police a few days later. Both Costellos read all five letters, either at the time they arrived by mail at their home or at a later point when the police provided the copies. Michael testified at trial that he “felt like [his] character was run through mud and ... it was [not] fair” and that he suffered a “bad” emotional reaction, principally because of the effect on his wife: he “felt bad that [his] wife had to go through a situation like this because [he] was [aspiring] to be a selectman.” Susan testified that she “was hysterical,” and that she “couldn’t stop crying, couldn’t sleep,” was “afraid to live in” her own home, and “afraid to be alone.” She further testified the letters were “affecting [her] whole life” and she was “ready to move” by the time she received the fifth letter because she was “scared out of [her] mind” to be living in the town and specifically at their house.
On November 18, 2011, a two-count complaint issued out of the District Court charging the defendant with criminal harassment in violation of § 43A. The first count named Michael and the second count named Susan as the person at whom the alleged acts of harassment were directed. The defendant filed a motion to dismiss that was denied by a District Court judge. Trial took place in August, 2013, and the jury found the defendant guilty on both counts.
Discussion. 1. Protected speech and § 43A. The criminal harassment statute punishes “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
‘“[Section] 43A is a statute directed at a course of conduct, rather than speech,” Commonwealth v. Johnson, 470 Mass. 300, 308 (2014), but unquestionably, the statute reaches speech, treating speech as a form of conduct. See Commonwealth v. Welch, 444 Mass. 80, 87-89 (2005). On various occasions, this court has grappled with the application of § 43A and its relationship to the First Amendment to the United States Constitution where speech is involved. See Welch, supra at 93-100. See also Johnson, supra at 307-312. Cf. O’Brien v. Borowski, 461 Mass. 415, 420-421, 425 & n.7 (2012) (discussing § 43A in case involving civil harassment statute, G. L. c. 258E). In Welch, supra, where the defendant’s criminal harassment convictions were based solely on incidents of pure speech, id. at 92 & n. 13, the court reviewed § 43A and its legislative history, and concluded that in “carefully crafting” § 43A, the Legislature “intended the statute be applied solely to constitutionally unprotected speech.” Welch, supra at 99. See id. at 98-99.
2. Sufficiency of the evidence, a. Complaint concerning Michael. A conviction under § 43A 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.” Johnson, 470 Mass. at 307, quoting Commonwealth v. McDonald, 462 Mass. 236, 240 (2012).
The defendant’s argument is that even if at least three of the five letters sent to Michael might qualify as separate acts constituting “a knowing pattern of conduct or speech” (first element), these acts cannot be prosecuted as criminal harassment and subject to criminal punishment because the essence of the conduct was speech and, in particular, constitutionally protected political speech. As to Michael, we agree. That is, when those letters that were arguably “directed at” (see § 43A [a]) or targeted Michael
In considering the First Amendment’s protective reach, “critical” to the examination is the context and content of the speech at issue. See Federal Communications Comm’n v. Pacifica Found., 438 U.S. 726, 744 (1978). It is true that the letters were sent to Michael at his home, a location where the homeowner’s privacy is itself entitled to constitutional protection. Cf. Rowan v. United States Post Office Dep’t, 397 U.S. 728, 736, 738 (1970). Cf. also Cohen v. California, 403 U.S. 15, 21 (1971) (“[T]his Court has recognized that government may properly act in many situations to prohibit intrusion into the privacy of the home of unwelcome views and ideas which cannot be totally banned from
Conceding that the letters contain protected political speech, the Commonwealth urges that, as in Johnson, the defendant’s speech was integral to a larger course of harassing conduct directed at Michael that caused Michael serious and reasonable alarm. The argument fails. With respect to the issue of integrated speech and conduct, this case is very different from Johnson. The facts before the court in Johnson, 470 Mass. at 303-305, demonstrated that the defendants used their speech intentionally to initiate and carry out a plan of harassment of the victims through
There is a second, independent, reason for rejecting the Commonwealth’s argument in support of Michael’s conviction: the evidence presented at trial was insufficient to persuade a rational fact finder that Michael was himself “seriously alarmed” by the receipt of the letters, one of the elements of the crime that the Commonwealth was obligated to prove. Michael testified that he felt it was “unfair” that his “character was really run through the mud,” but recognized his election as selectman opened him up to some criticism, and that the emotional distress he experienced by receipt of the letters was “mostly [his] wife[,] because of her — the way it impacted her.” He stated that he “felt bad that [his] wife had to go through a situation like this” because he aspired to be a selectman; “[i]t affected [him] very much because . . . [he] was putting her through this.” He did not identify any specific emotional consequences or impacts he suffered directly as a consequence of his receipt of the letters.
Michael’s experience of being upset or distressed by his wife’s experience does not qualify as the “serious[ ] alarm[ ]” or “substantial emotional distress” required by § 43A because his dis
In sum, in light of the generous constitutional protections afforded to political speech by the First Amendment (as well as art. 16 of the Massachusetts Declaration of Rights), and the lack of evidence of serious alarm on Michael’s part, we conclude that the evidence was not sufficient to support the defendant’s conviction of criminal harassment of Michael.
b. Complaint concerning Susan. We turn to the sufficiency of the evidence as to Susan.
Three of the defendant’s five letters were specifically directed at or targeted Susan: the third, fourth, and fifth.
It is clear that the defendant’s letters addressed to Susan do not contain “fighting words,” the category of unprotected speech that Welch primarily discussed.
“[a] true threat does not require an explicit statement of an intention to harm the victim as long as circumstances support the victim’s fearful or apprehensive response. . . . Nor does a true threat threaten imminent harm; sexually explicit or aggressive language directed at and received by an identified victim may be threatening, notwithstanding the lack of evidence that the threat will be immediately followed by actual violence or the use of physical force. . . .
*567 
“[T]he ‘true threat’ doctrine applies not only to direct threats of imminent physical harm, but to words or actions that — taking into account the context in which they arise — cause the victim to fear such harm now or in the future and evince an intent on the part of the speaker or actor to cause such fear” (quotations and citations omitted).
O’Brien, supra at 424-425.
We conclude that, viewed in context, a jury reasonably could conclude that the defendant’s speech directed at Susan that was contained in each of the last three letters qualified as true threats. That is, because — in contrast to the speech directed at Michael — we cannot conclude as a matter of law that the speech directed at Susan that was contained in these three letters qualified as protected speech, it becomes a question for the fact finder to determine whether the speech was unprotected speech. Cf. United States v. Stock, 728 F.3d 287, 298 (3d Cir. 2013) (“In the usual case, whether a communication constitutes a threat or a true threat is a matter to be decided by the trier of fact. ... It is not unprecedented for a court to conclude that a communication does not legally qualify as a threat or true threat.... [A] court may properly dismiss an indictment as a matter of law if it concludes that no reasonable jury could find that the alleged communication consti
These three letters contained vulgar and hateful insults and comments that in their choice of language and their repetitive nature were disturbing, reflecting what could be found to be an obsessive interest in private matters relating to Susan — especially her marital relationship. But more to the point, some of the specific comments in the letters, such as Susan’s possible future need to have plastic surgery to change her appearance as a self-protective measure, her current need to move out of their home, provocative warnings to Susan about attending town meetings, and the reference to Michael having burned the home of his first wife with her in it, by themselves could be found to qualify as expressing a danger to Susan’s personal safety, especially in her home.
Furthermore, the text of the letters must be viewed contextually. From Susan’s perspective these letters were three out of a total of five letters written to her by a person who refused to identify himself or herself except as a “concerned citizen,” and were sent at regular, two- to three-week intervals over two months — ceasing, it can be inferred, only after the defendant’s son effectively revealed his father’s identity. The anonymity of the letters made evaluation of the sender’s intent impossible and, therefore, could be found to have greatly increased the letters’ potential to instill in Susan a fear of future harm, including physical harm, being visited on her in her home.
As part of the contextual analysis, an individual’s right “to be let alone” in her home is relevant. Cf. Rowan v. United States Post Office Dep’t, 397 U.S. at 736, 738 (“But the right of every person ‘to be let alone’ must be placed in the scales with the right to communicate. ... We therefore categorically reject the argument that a [mail order] vendor has a right under the Constitution or otherwise to send unwanted material into the home of another . . . . That we are often ‘captives’ outside the sanctuary of the home and subject to objectionable speech and other sound does not mean we must be captives otherwise”). Cf. also People v. Shack, 86 N.Y.2d 529, 536 (1995) (“The Rowan analysis may be extended to [New York’s telephone harassment statute]”). Not
Susan testified (and the jury could credit) that the defendant’s acts of sending the series of anonymous letters made Susan feel no longer physically safe in her own home to the point that she wanted to move away. See United States v. Bellrichard, 994 F.2d 1318, 1321 (8th Cir. 1993) (“As a general proposition, correspondence of this sort delivered to a person at home or at work is somewhat more likely to be taken by the recipient as a threat than is an oral statement made at a public gathering, which was the situation in Watts [v. United States, 394 U.S. 705 (1969)]”). The repetitive mailing of anonymous letters to Susan’s home — indicating, obviously, that the sender knew where she lived — could reasonably be found by a jury as supporting and indeed amplifying the message of threat to Susan’s personal safety that the three letters contained. See Hrycenko v. Commonwealth, 459 Mass. 503, 504, 511 (2011) (letter sent to judge’s home “made it clear . . . that [the defendant] knew where [the judge] lived” and showed intent to intimidate judge). See also United States v. Mabie, 663 F.3d 322, 327, 331 (8th Cir. 2011), cert. denied, 133 S. Ct. 107 (2012) (letters sent to prosecutors’ unlisted home addresses constituted true threats). Cf. Commonwealth v. O’Neil, 67 Mass. App. Ct. 284, 285-286, 294 (2006) (affirming conviction of criminal harassment where defendant mailed five letters from jail to victim at her home and two more to her family; although letters contained no explicit threats, they “presumed a familiarity with the victim” who had never socially interacted with defendant, and had “obsessive tone,” establishing over-all threatening effect; no issue concerning First Amendment raised in case).
At trial, the judge instructed the jury on the elements of criminal harassment in accordance with Instruction 6.640 of the Criminal Model Jury Instructions for Use in the District Court (rev. 2013).
The prosecutor’s statements asking the jury to use their common sense clearly was not improper. Cf. Opinion of the Justices, 360 Mass. 877, 880 (1971), quoting Williams v. Florida, 399 U.S. 78, 100 (1970) (“[T]he essential feature of a jury obviously lies in the interposition between the accused and his accuser of the commonsense judgment of a group of laymen, and in the community participation . . . [which] results from that group’s determination of guilt or innocence”). However, we agree that the suggestion to the jurors to evaluate their feelings would have been better left unsaid. Application of a reasonable person standard, as is called for in assessing the issue of “substantial emotional distress,” calls for an objective assessment to be made, but the exhortation to the jurors to evaluate their individual feelings suggests instead that a subjective assessment would be appropriate, or at least poses a risk that the jurors might substitute their individual, subjective reactions to the letters for a collective and objective assessment.
Conclusion. The defendant’s conviction on count 1 of the complaint, relating to Michael Costello, is reversed, and the complaint is to be dismissed. The defendant’s conviction on count 2 of the complaint, relating to Susan Costello, is vacated and the verdict set aside, and the case is remanded to the District Court for a new trial consistent with this opinion.
So ordered.
Because Michael Costello and Susan Costello share a last name, we refer to each by his or her first name to avoid confusion.
The defendant does not challenge on appeal the sufficiency of the evidence that he was the author of the five letters, most of which purported to be from “a concerned citizen,” and therefore we treat as established his identity as the author.
This introduction was followed by other, thematically similar comments that appeared later in the letter, including:
“You are not even close to being capable in any way to be a selectman, never mind a floor sweeper. Totally not capable to do the job. . . . The tide is turning against you in town and people are talking about you — negatively. ... I hear' that a group of people will be at all future town meetingfs] to stare you down, talk ouft] of turn, criticize —just like you used to do. Look for the big shit eatinfg] grins.”
The record contains no evidence that the letter was — or indeed that any of the letters were — read at any meeting of the board of selectmen.
There was no evidence that the letter was “posted” or made public in any venue.
We infer the reference was to Susan.
The defendant moved for a required finding of not guilty at the close of the Commonwealth’s case; the motion was denied.
This court has specified that to prove a “pattern of conduct or series of acts” under G. L. c. 265, § 43A (§ 43A), the Commonwealth must “prove three or more incidents of harassment.” Commonwealth v. Welch, 444 Mass. 80, 89 (2005), overruled on another ground by O’Brien v. Borowski, 461 Mass. 415 (2012).
In the Welch case, the court reversed the defendant’s convictions of criminal harassment and ordered the complaints dismissed because there was an insufficient number of incidents of alleged harassment to satisfy the statutory requirements of “pattern” or “series.” Welch, 444 Mass. at 93.
In Welch, 444 Mass. at 99, the court considered only “fighting words” as a category of unprotected speech that § 43A could constitutionally reach, but in O’Brien, 461 Mass. at 425 n.7, and Commonwealth v. Johnson, 470 Mass. 300, 311 (2014), the court subsequently clarified that true threats, along with other “well-defined and limited categories,” id., of constitutionally unprotected speech, fall within the scope of § 43A. Another relevant category of speech that the United States Supreme Court has recognized as falling into the unprotected category, as Johnson, supra, points out, is “[s]peech integral to criminal conduct.” See United States v. Stevens, 559 U.S. 460, 468-469 (2010). and cases cited.
This narrow construction of § 43A, first announced in Welch, 444 Mass. at 100, reflects the court’s determination that it represented the Legislature’s intent in enacting the criminal harassment statute, and comports with the general intent of the First Amendment to the United States Constitution to bar the government from infringing on the freedom of speech, one of the fundamental personal rights and liberties guaranteed by the Constitution. See, e.g., United States v. Alvarez, 567 U.S. 709, 716 (2012) (“[A]s a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content” [citation omitted]). Although the government may, in certain circumstances, regulate speech based on its content, see, e.g., Federal Communications Comm’n v. Pacifica Found., 438 U.S. 726, 744-745 (1978), nonetheless, the Constitution “demands that content-based restrictions on speech be presumed invalid . . . and that the Government bear the burden of showing their constitutionality” (citation omitted). Ashcroft v. American Civil Liberties Union, 542 U.S. 656, 660 (2004). Accord Ashcroft v. Free Speech Coalition, 535 U.S. 234, 244 (2002) (“The government may violate [the mandate of the First Amendment] in many ways, . . . but a law imposing criminal penalties on protected speech is a stark example of speech suppression” [citations omitted]); R.A.V. v. St. Paul, 505 U.S. 377, 382 (1992) (“The First Amendment generally prevents government from proscribing speech, ... or even expressive conduct, . . . because of disapproval of the ideas expressed. Content-based regulations are presumptively invalid” [citations omitted]). See generally Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50-51 (1988) (“[T]he freedom to speak one’s mind is not only an aspect of individual liberty — and thus a good unto itself — but also is essential to the common quest for truth and the vitality of society as a whole” [quotation omitted]).
The dissent suggests that the Welch case was “improvident and should be revisited” to the extent our' opinion may be understood to interpret “§ 43A as applicable only to constitutionally unprotected speech” in order to narrow it sufficiently to be constitutional. Post at note 10. This view misreads Welch, at least in part. We concluded in Welch that in drafting § 43A, the Legislature “intended the statute be applied solely to constitutionally unprotected speech” (emphasis added). Welch, 444 Mass. at 99. In other words, we were seeking to implement legislative intent, not simply to apply a judicially created, narrowing construction to the statute in order to preserve its constitutionality. In the O’Brien case, we returned to, and repeated, the same characterization of the Legislature’s intent in enacting § 43A. See O’Brien, 461 Mass. at 420, 425. The Johnson case also implicitly accepts the view of the Welch and O’Brien cases that insofar as speech is concerned, the Legislature intended the proscriptions of § 43A to be limited to classes of constitutionally unprotected speech. See Johnson, 470 Mass. at 308-312. Since Welch was decided, the Legislature has amended § 43A, see St. 2010, c. 92, § 10, but not in a manner to suggest a change in the statute’s purpose or intent in relation to the types of speech it reaches. We see no reason, therefore, to abandon or reject in the present case our' previously articulated, and by now established, interpretation of that intent, and our decision in this case is expressly premised on it. Moreover, this interpreta
The parties at trial treated all five letters as being “sent” to both Michael and Susan. Under § 43A, however, the pertinent question is whether the letters were
In the Johnson case, the defendants twice posted false advertisements on the Internet Web site “Craigslist” about items that the victims supposedly were giving away or selling, causing members of the public to arrive at the victims’ home and to telephone repeatedly, looking for the items. Johnson, 470 Mass. at 303-304. The defendants also sent an anonymous and ominous electronic mail (e-mail) message containing all the victims’ personal identifying information; filed a false report with the Department of Children and Families (DCF) alleging that one of the victims physically abused his son, an act that caused DCF staff to initiate an investigation; and sent to one of the victims an e-mail message and letter from a fictitious person that falsely accused the victim of having sexually abused that person in the past. See id. at 304-305.
The defendant argues that that the Commonwealth failed to prove that the defendant targeted Michael on three separate occasions, which is a required element of the crime. See Welch, 444 Mass. at 89-90. Of the five letters mailed by the defendant, the first and second letters were the ones specifically “directed at” Michael, i.e., the ones that specifically targeted him. The handwritten note addressed to “Mikey and Susan” also arguably targeted Michael (as well as Susan). However, the record is unclear whether this note was attached to either the second or the third letter. If this note was in fact attached to and sent with the second rather than the third letter, we agree with the defendant that there may well not have been three separate incidents of alleged harassment, and that this could be a separate reason warranting reversal of his conviction. We need not decide the question, however, given the other two reasons why the conviction cannot stand.
The third and fourth letters were sent to Susan, the salutations in them were to Susan, and the contents of those letters also make clear that they were directed at her. The fifth letter was addressed to her, but the salutation was to “Lorraine.” However, the note on the letter and their' contents certainly indicated that the intended target of the letter was Susan — or so the jury could have found.
“Fighting words” are words “which by their' very utterance inflict injury or tend to incite an immediate breach of the peace and words plainly likely to cause a breach of the breach by the addressee” (quotations and citations omitted). Welch, 444 Mass. at 94. Accord O’Brien, 461 Mass. at 423.
On the record presented, the speech would not qualify as defamatory because there was no evidence presented that the speech was false. See, e.g., Harrington v. Costello, 467 Mass. 720, 728 n.15 (2014), quoting White v. Blue Cross & Blue Shield of Mass., Inc., 442 Mass. 64, 66 (2004), and Restatement (Second) of Torts § 558 (1977).
See, e.g., Virginia v. Black, 538 U.S. 343, 359-360 (2003) (“The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats ‘protects] individuals from the fear of violence’ and ‘from the disruption that fear engenders,’ in addition to protecting people ‘from the possibility that the threatened violence will occur’ ” [citation omitted]); United States v. Fulmer, 108 F.3d 1486, 1491 (1st Cir. 1997) (“whether [the defendant] should have reasonably foreseen that the statement he uttered would be taken as a threat by those to whom it is made”); Shackelford v. Shirley, 948 F.2d 935, 938 (5th Cir. 1991) (“[E]xpression has special value only in the context of ‘dialogue’ .... As speech strays further from the values of persuasion, dialogue and free exchange of ideas the [F]irst [A]mendment was designed to protect, and moves toward threats made with specific intent to perform illegal acts, the [S]tate has greater latitude to enact statutes that effectively neutralize verbal expression”). Cf. Watts v. United States, 394 U.S. 705, 708 (1969) (distinguishing between unprotected true threats and protected political speech). See generally Volokh, One-to-One Speech vs. One-to-Many Speech, Criminal Harassment Laws, and “Cyberstalking”, 107 Nw. U. L. Rev. 731, 740-744 (2013).
It also is worth noting that because the letters were anonymous, Susan would have been unable to halt their arrival at her home, such as requesting a block at the post office or, perhaps, seeking a civil restraining order pursuant to G. L. c. 258E.
We disagree with the dissent that our discussion of true threat has “stretchfed] the meaning of ‘true threat’ far beyond common understanding, removing broad swaths of speech from constitutional protection and imposing potential criminal liability on statements that might, in another’s eyes, seem merely rude and offensive.” Post at 582. We apply here the definition of true threats set out in the O’Brien case, and that definition is built on and follows Supreme Court
The dissent suggests that there is no distinction between a true threat and the common-law offense of threatening to commit a crime, set out in G. L. c. 275, § 2. See post at 576-577. We disagree. A threat to commit a crime within the scope of G. L. c. 275, § 2 — the subject of Commonwealth v. Sholley, 432 Mass. 721 (2000), cert. denied, 532 U.S. 980 (2001), on which the dissent relies — may well qualify as a true threat, but the opposite is not always true: not every “true threat” satisfies the elements of this crime. “The elements of threatening a crime include an expression of intention to inflict a crime on another and an ability to do so in circumstances that would justify apprehension on the part of the recipient of the threat.” Id. at 724-725, quoting Commonwealth v. Robicheau, 421 Mass. 176, 183 (1995). With a true threat, the focus is not so much on the defendant’s intent and ability to “inflict a crime” on the alleged target but rather on protecting the alleged target from fear of violence and “from the disruption that fear engenders” (citations omitted). Virginia v. Black, 538 U.S. at 359.
In addition to his constitutional challenge, the defendant challenges the sufficiency of the evidence with respect to two elements of the crime of criminal harassment directed at Susan. The Commonwealth, he claims, failed to prove that (1) the defendant intended to target Susan on three separate occasions (second element); and (2) the defendant’s speech would cause a reasonable person in Susan’s position to suffer substantial emotional distress (fourth element). We disagree. The last three letters sent to the Costellos’ home constituted three separate occasions on which the defendant could be found to have directly targeted Susan. Further, and contrary to the defendant’s argument, the evidence was sufficient for a jury to find that a reasonable person in Susan’s position would have suffered substantial emotional distress due to the receipt of the series of personal letters, given their content, and that they were anonymous and mailed at regular intervals to her home over a period of approximately two months.
The judge instructed the jury in part as follows:
“In order to prove the Defendant guilty of this offense, the Commonwealth must prove five things beyond a reasonable doubt.
“First, that the Defendant engaged in a known pattern of conduct or speech or series of acts on at least three separate occasions;
“Second, that the Defendant intended to target [Count I] Michael Costello and Count II, Susan Costello with a harassing conduct or speech or series of acts on each occasion;
“Third, that the conduct or speech or series of acts were such in nature that they seriously alarmed. Count I, Michael Costello, Count II, Susan Costello;
“Fourth, that the conduct or speech or series of acts was of such nature that they would cause a reasonable person to suffer substantial emotional distressf;] and . . .
“Five, that the Defendant committed the conduct or speech or series of acts willfully and maliciously.
“To satisfy the first element of the offense, the Commonwealth must prove the pattern of conduct, which includes a minimum of three incidents of harassment. . .
Where the Commonwealth asserts, for example, that the defendant’s speech is unprotected because it constitutes a true threat, the judge would have to
Because count 1 of the complaint relating to Michael must be dismissed, our consideration of these remaining arguments is only relevant to count 2 of the complaint, relating to Susan.
Dissenting Opinion
(dissenting, with whom Spina and Hines, JJ., join). I
I write separately because I do not agree with the court’s conclusion that the defendant’s conviction as to Michael’s wife, Susan Costello, based on speech in letters directed to her, is supported under the court’s prior, long-standing definition of what constitutes a “true threat.” See Virginia v. Black, 538 U.S. 343, 359-360 (2003). The court maintains that its decision to expand the reach of the types of speech that now will be labeled unprotected “true threats” “comports with the general intent of the First Amendment to the United States Constitution to bar the government from infringing on the freedom of speech, one of the fundamental personal rights and liberties.” Ante at note 12. In reality, however, the court today removes large quantities of heretofore protected speech from any constitutional protection. Rather than expanding the definition of what constitutes a true threat, as the court does today, I would instead consider whether the defendant’s speech, even if protected, may still subject him to conviction under § 43A, because the statute serves “a compelling state interest” and is “narrowly drawn to achieve that end” (citation omitted). See Commonwealth v. Lucas, 472 Mass. 387, 398 (2015); id. at 393, quoting R.A.V. v. St. Paul, 505 U.S. 377, 383-384 (1992) (“The fact ‘that these areas of speech can, consistently with the First Amendment, be regulated because of their constitutionally proscribable content.... [does] not [mean] that they are categories of speech entirely invisible to the Constitution, so that they may be made the vehicles for content discrimination unrelated to their distinctively proscribable content’1). See Ward v. Rock Against Racism, 491 U.S. 781, 803 (1989); Commonwealth v. A Juvenile, 368 Mass. 580, 584 (1975) (under First Amendment, review of crime that regulates speech requires strict scrutiny).
Until now, “true threats” have been defined as being limited to
“those cases where the defendant expresses an intention to inflict a crime on another, has the ability to carry out that*575 crime, causes the victim to fear harm, and does so in circumstances that make the victim’s fear justifiable.”
Commonwealth v. Sholley, 432 Mass. 721, 727 (2000), cert. denied, 532 U.S. 980 (2001). Cf. O’Brien v. Borowski, 461 Mass. 415, 425 (2012) (discussing § 43A in case involving civil harassment statute, G. L. c. 258E, and stating that true threats do not require ‘“direct threats of imminent physical harm,” where, ‘“taking into account the context in which they arise,” words or actions would ‘“cause the victim to fear such harm now or in the future and evince intent on the part of the speaker or actor to cause such fear”). We have recognized these limitations to be necessary so that ‘“the offense of threatening to commit a crime only reaches cases of ‘true threats’ that would not qualify as protected speech.” Commonwealth v. Sholley, supra. Whether direct or indirect, the common denominator has been a threat of physical harm to the person, “now or in the future.” O’Brien v. Borowski, supra. See ante at note 20, quoting Virginia v. Black, 538 U.S. at 360 (“a prohibition on true threats ‘protecfis] individuals from the fear of violence’ and ‘from the disruption that fear engenders,’ in addition to protecting people ‘from the possibility that the threatened violence will occur’ ” [citations omitted]). Under the court’s analysis today, however, henceforth speech will be considered unprotected if the statements, “viewed contextually,” could be found to increase the “potential to instill [in an intended target] a fear of future harm,” because the recipient is unable to determine the speaker’s intent.
The court’s expansion of what heretofore have been “well-
The court does not explain the nature of the threatened crime it sees reflected in the letters sent to the Costellos, or in those sections of the letters it deems directed particularly at Susan, and does not state whether the threat is a threat to cause physical harm to Michael or to Susan.
The court sees a statement in the fourth letter, addressed to Susan and accompanied by a newspaper article about the Attorney General’s investigation of Michael and his “abuses,” as potentially a true threat to her.
The result of the court’s decision today — under which the same language, in an anonymous letter directed at an individual in the privacy of his or her home, may be political speech that is accorded the highest constitutional protection, or unprotected speech, depending on whether the reader holds an elected office — will be “a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their [own] personal predilections” (citation omitted).
A conclusion that the speech at issue here is constitutionally protected, however, need not, in my view, preclude prosecution of the defendant under § 43A as to the conduct directed at Susan. That a government regulation may reach protected speech does not alone render it unconstitutional. See Frisby v. Schultz, 487 U.S. 474, 484-488 (1988), and cases cited. See, e.g., Burson v. Freeman, 504 U.S. 191, 198, 209-210 (1992) (one hundred foot
Although the court’s decision in Commonwealth v. Welch, 444 Mass. 80, 98-100 (2005), commented that it would “no[t] hesi-tare]” to interpret the language of § 43A as applicable only to constitutionally unprotected speech, more specifically only to true threats, because it considered such a narrowing necessary in order to deem § 43A as constitutional, that statement was made in circumstances quite distinct from those confronting the court here.
The Legislature enacted § 43A in order to provide ‘“a remedy to [stalking] victims before ‘nonthreatening ’ harassment escalates into life-threatening assault.” Welch, supra at 100. The provision ‘“was passed in response to a perceived loophole in the stalking statute,” which ‘“left without remedy those victims plagued by harassment that, although potentially dangerous, did not include an overt ‘threat’ and thus was not actionable under existing law.” Id. at 87-88. “ ‘[ S |talkcrs who become lethal move from nonthreatening behavior to direct threats . . . ’ and ‘criminal harassment law establishes a continuum along which law enforcement may confront stalking behaviors.’ ” Id. at 100, quoting Kirkman, Every Breath You Take: Massachusetts Steps up Its Efforts to Stop Stalkers, 85 Mass. L. Rev. 174, 181, 183 (2001). It would be reasonable to conclude that, with the enactment of the criminal harassment statute, the Commonwealth need not wait until it is too late to protect victims of potentially dangerous violent crimes, and that, under ordinary tenets of First Amendment jurisprudence, the Commonwealth has demonstrated a compelling interest in criminalizing conduct and speech that does not include a true threat but, nonetheless, is “potentially dangerous” as contemplated by § 43A. Welch, supra at 88. Cf. United States v. Salerno, 481 U.S. 739, 749 (1987).
A conviction under § 43A 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.’ ” Commonwealth v. Johnson, 470 Mass. 300, 307 (2014), quoting Commonwealth v. McDonald, 462 Mass. 236, 240 (2012). The requirement of the criminal harassment statute that speech be “directed at” one victim, on at least three occa
Given this, there is no need to pursue the path the court chooses today, by stretching the meaning of “true threat” far beyond common understanding, removing broad swaths of speech from constitutional protection and imposing potential criminal liability on statements that might, in another’s eyes, seem merely rude and offensive.
Because Michael Costello and Susan Costello share the same last name, I refer to them by their' first names.
The court notes that a jury may consider “surrounding facts that provide context” in order to find that a defendant’s speech or conduct “constituted a direct threat.” See ante at note 26. Compare Spence v. Washington, 418 U.S. 405, 409-410 (1974) (defendant’s activity of hanging marked flag from his bedroom window, combined with factual context, “lead to the conclusion that he engaged in a form of protected expression”). While the court asks the jury to determine whether, given the unspecified “context” it must consider, the defendant’s speech to Susan constituted a true threat, “[t]he inquiry into the protected status of speech is one of law, not fact.” Connick v. Myers, 461 U.S. 138, 148 n.7 (1983). The limits of each unprotected category of speech “have been determined by the judicial evaluation of special facts that have been deemed to have constitutional significance.” Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 505 (1984). A court will review “to be sure that the speech in question actually falls within the unprotected category and to confine the perimeters of any unprotected category within acceptably narrow limits in an effort to ensure that protected expression will not be inhibited.” Id.
The court describes the speech directed at Susan in the last two letters as containing “vulgar and hateful insults” in language that could “reflectf ] ... an obsessive interest in” private matters, “especially her marital relationship.” Ante at 568. The court does not explain the nature of the threatened harm to Susan’s “personal safety” that it sees reflected in those sections of the letters, and how a jury could find that the statements constitute “a serious expression of an intent to commit an act of unlawful violence to a particular' individual or group of individuals.” See Virginia v. Black. 538 U.S. 343, 359 (2003). The court also appeal's to disregard the fact that, in the letter in which the statements about Susan’s husband were made, the defendant asked in the same portion of the letter how Susan could continue to support “such a bum” remaining in his role as a selectman. See discussion, infra.
Compare, for example, the court’s statement in Commonwealth v. Walters, 472 Mass. 680, 695-696 (2015), regarding what may constitute a “true threat” within the meaning of the First Amendment to the United States Constitution, in reviewing a conviction under the stalking statute, G. L. c. 265, § 43 (a):
“Turning to the quotation on the page, ‘[m]ake no mistake of my will to succeed in bringing you two idiots to justice,’ in the circumstances of this case, it is reasonable to interpret the ‘two idiots’ as referring to the victim and [her boy friend]. But even if one reads the sentence in combination with the photograph of the defendant, any particular' violent message that might be attributed to the defendant from the presence of these two elements on the same page is speculative. Although the photograph depicts the defendant holding a gun, nothing else about that image suggests a clear intent to commit violence. Furthermore, like the photograph, the word ‘justice’ is amenable to a reasonable, nonviolent interpretation, namely, that the defendant intended to pursue whatever legal means might be available to right wrongs he perceived the victim and [her boy friend] had inflicted on him. . . .
“Finally, the Commonwealth asserted during oral argument that, given the limited total number of items on the defendant’s Facebook profile page, the combined presence of (1) the photograph of the defendant with a gun, (2) the quotation about justice, (3) the reference to Rihanna [a well-known singer and survivor of domestic violence], and (4) the reference to the ‘Governors . . . Task Force on Police Corruption,’ suggested that the page could have had little meaning except to project the appearance of a threat against the victim and [her boy friend]. We agree that the page as a whole could have come across as vaguely ominous or disturbing. However, because no evidence was introduced at trial regarding the defendant’s opinion of or even knowledge about Rihanna, or about whether the defendant did or did not participate in a task force on police corruption, we question whether it is reasonable to ascribe to these items the meaning that the Commonwealth suggests, and to then infer that the defendant in fact created and intended to use the page to place the victim in imminent fear of bodily harm. Ultimately, based on the trial record, we conclude that the evidence of the defendant’s intent concerning the creation of the Facebook profile was insufficient with respect both to whether the page constituted a threat within the scope of § 43 (a) (2) and to the reasonableness of the victim’s fear.”
The court’s reference is to the statement that “[t]he authorities will continue to hound [Michael] until you and he can’t stand it anymore. Maybe you will have to live like Whitey Bulger frequenting plastic surgeons to have any hope of a peaceful lifestyle. The only difference is Whitey has unlimited funds and you don’t.” See ante at 557.
The letter stated, as the court notes, that Michael “forged title to his wife’s caif,] set fire to his wife’s house with her in it[,] [and] screwed the cleaning lady then married her,” but continues, “Lorraine — how stupid can you be to support such a bum — this is a reflection on you too.”
“This letter will be all over town by then as well as at the selectmenf’s] meeting”; “This is such a good letter I think I will send it around and post it at Vino’s.”
It is not clear, for example, whether, under the court’s analysis, if Susan were an elected member of the town’s school committee, the letter involving Michael’ s conduct as a selectman would, as to her, be transformed from an unprotected “true threat” to protected political speech.
The court states that it considers, in large part, different portions of the language in that letter, or different letters, with respect to its determination whether the content was directed to Michael or to Susan. See ante at note 14. This purported distinction cannot be sustained. It is not clear how a recipient of a letter addressed to “Mr. and Mrs. Costello,” as some of the letters were, or addressed in some form to Susan, containing content evidently intended to be shared with Michael, would know which portions of the letter were “directed” to him or her. See id. It is particularly unclear how a recipient would understand that a letter addressed to Susan actually was “directed” at Michael, see ante at 556, or how one letter, addressed to a husband and wife, actually was only directed at the wife, as the court concludes. See ante at note 14.
In Commonwealth v. Welch, 444 Mass. 80, 82-83 (2005), the factual context before the court involved a question of pure speech, where the offense statements were made in public. This was the lens through which the court considered what the Legislature must have intended in order to render § 43A sufficiently narrow to pass constitutional muster. In O’Brien v. Borowski, 461 Mass. 415, 425 n.7 (2012), the court held that, in Welch, it “erred in concluding that the criminal harassment statute was limited in its reach to ‘fighting words.’ ” To the extent that Welch interpreted § 43A as applicable only to constitutionally unprotected speech, in my view, that decision was improvident and should be revisited.
“Typically, stalking behaviors involve obsessional attractions to victims and are not necessarily intended to harm or frighten them.” Commonwealth v. O’Neil, 67 Mass. App. Ct. 284, 293 (2006).