Criminal Harassment Charges Survive First Amendment Challenge, Even Without The Threat of Personal Injury

December 24, 2014 · by Venkat Balasubramani · in Content Regulation, Derivative Liability

This is a criminal harassment case. As recounted by the court, the Johnsons lived on the same street as the victims, the Lyonses. The Johnsons acquired some land adjacent to the Lyonses and sought to develop it, but ended up being mired in land use litigation (involving the Lyonses and neighbors). Colton, not a defendant, was a handyman/assistant who helped William Johnson in his real estate endeavors. (The court notes that among Colton’s duties were to identify suitable parcels for development, and he apparently picked the parcel that ultimately ended up mired in litigation with the Lyonses.)

[photo credit: Shutterstock/Memo Angeles – “Internet Troll Using a Computer”]

After the Johnsons and Lyons were no longer on speaking terms, William Johnson enlisted Colton to play a series of “pranks” on the Lyonses. William helped, instructed, or encouraged Colton to execute these ideas, which included the following:

Colton posted a craigslist ad that listed the Lyonses’ home 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, but numerous strangers (30-40) showed up to their home. The Lyonses contacted the police and the post was taken down; but it appears it was put back up by Colton at William’s request.
Colton posted a second ad purporting to be Jim Lyons selling his “late son’s motorcycle” and instructing interested parties to call Jim on his cell phone after 10pm. Jim received a slew of calls, which continued for months after the posting.
Colton also sent an email to the Lyonses from a fictitious account. The subject of the email read “It’s just a game for me” and the text stated “Let the Games Begin!” and included the Lyonses’ personal information, including social security number, telephone number, date of birth, bank name and location. At the bottom, the email stated: “if you aren’t miserable, I ain’t happy! Let’s Play.”
William Johnson also decided to file a false report alleging child abuse by Jim (of Jim’s son). The authorities conducted an investigation and found nothing amiss.
Finally, Colton sent the Lyonses another email with the subject line “Brian”. The text read “What have you done James? . . . or . . . Why James? You stole the innocence of a young man.” This message was followed up by a postal letter from an individual purporting to be Brian that claimed to have worked for Jim as a youth and accused Jim of molesting him as a youth.

The Johnsons were charged making a false report, identity fraud, and criminal harassment. Colton entered a plea agreement and testified against the Johnsons. At the close of trial, the judge entered a not guilty finding on the identity fraud case. The state dismissed the conspiracy charge. The jury convicted defendants of criminal harassment and William individually of making a false report. He was sentenced to 1.5 years and she got 6 months. They were both fined $1,000. On appeal, they both raised, among others, constitutional challenges.

Facial challenge: William brought a facial challenge, saying that the criminal harassment statute was overbroad and vague. The court rejects this argument, initially noting that the statute is directed at conduct and not pure speech. (Citing to Osinger.) The court also notes that the statute requires intent and substantial harm and thus it’s tough to imagine what protected speech would fall within the statute. Terms such as “seriously alarms” are not so vague that they would not tip off a person of common sense as to what is allowed or prohibited. The court also says that the statute does not allow the listener to determine what is objectionable (and does not pose a heckler’s veto problem).

As applied challenge: The as-applied challenge also fails. The court says that the statute targets a hybrid of conduct and speech that is integral to the commission of a crime. Accordingly, the statute does not implicate protected speech:

The defendants do not claim that creating fictitious Internet postings and sending a letter falsely accusing someone of a crime constitute legal conduct. Their conduct served solely to harass the Lyonses by luring numerous strangers and prompting incessant late-night telephone calls to their home by way of false representations, by overtly and aggressively threatening to misuse their personal identifying information, and by falsely accusing Jim of a serious crime. Where the sole purpose of the defendants’ speech was to further their endeavor to intentionally harass the Lyonses, such speech is not protected by the First Amendment. [The court cites to US v. Sayer where the First Circuit upheld a conviction under the federal cyberstalking statute based on craigslist posts seeking sex (posted purportedly on behalf of the victim).]

Defendants argued that the conviction was improper because their speech was not fighting words, which the court previously said was the only form of speech that could violate the Massachusetts statute. This argument read the court’s prior precedent construing the statute too narrowly. In the previous case, the court actually said that fighting words “or otherwise unprotected speech” properly came within the statute.

Other elements of the charge: Defendants also took issue with the finding that their actions were “directed at” and “seriously alarmed” the victims but the court says these elements are satisfied. The posts were not made directly to the victims, but nevertheless defendants intended that the victims were harassed by third parties and this was an obvious outcome. While the court may take a closer look at who the speech is directed at in a fighting words or a threat case, a harassment charge does not raise the same issues:

The craigslist postings were the equivalent of the defendants recruiting others to harass the victims and the victims alone. The causation link is satisfied. The defendants cannot launder their harassment of the Lyons family through the internet to escape liability. [emphasis added]

The court also says that the evidence easily satisfies the “seriously alarmed” prong.

[The court also resolved some other evidentiary and discovery-related issues. The most interesting one related to whether the emails sent from the Johnsons’ admittedly shared email account could be attributed to Gail. The court says that Colton’s testimony—that he understood the emails to be “from Gail, on William’s behalf” and were “signed using Gail’s typical signature”—was sufficient to authenticate some of the emails as being from Gail.]

This case is a good complement to Osinger and Sayer, both revenge-porn/cyberstalking prosecutions under the federal anti-stalking statute. The cases reflect courts’ willingness to sustain convictions where people engage in a course of conduct that is intentional and which causes fear, or in this case which alarms the victims. The slight difference between Osinger and Sayer and this case is that those cases involved a fear of bodily harm, while in this case, the court focused, as the statute required, on whether the course of conduct would “seriously alarm” the victims. I don’t know if this is a material difference from a First Amendment standpoint but it’s a difference worth noting: there was never an overt expression of intent to cause physical harm in this case. As we go down the path towards annoyance, the First Amendment challenge looks more and more meritorious. The case also brought to mind Chan v. Ellis, the message board/stalking case from Georgia. Is it more like Osinger and Sayer or Chan? My instinct tells me the former, but it’s tough to pinpoint exactly why. All of this highlights the importance of Elonis, the case currently pending in front of the Supreme Court. That case could spell out what type of fear-causing statements fall outside the protections of the First Amendment. (Minority view: there’s a slight chance that although the argument focused on the First Amendment issue, the Elonis opinion could end up focusing on statutory construction.)

Osinger, Sayer and this case generally reject the First Amendment challenge based on the “integral to criminal conduct” exception; but as Judge Watford’s concurring opinion in Osinger noted, this is somewhat circular. The criminal conduct is the alleged harassment, and if the state can satisfy this exception by pointing to pure speech that amounts to harassment, this exception does not amount to much of an exception. This case did involve a separate charge of filing a false report, but interestingly the court notes that the jury was instructed to not consider this as evidence of harassment. It’s also worth noting that Gail was not convicted of the charge of filing a false report. Although the quoted language from the court rejecting defendants’ as-applied challenge cites to “their” act of filing a false report, the court isn’t very careful about deciding whether the course of conduct minus the false report amounts to harassment.

We’ve blogged recently about a few cases involving family members and Section 230. (See “Are Parents Liable For Their Children’s Online Pranks?–Boston v. Athearn.”) The fact that Gail and William were held liable for content posted by a third party (Colton) raises a section 230 issue. As users of online services, they get the benefit of section 230 to the extent online content is created or developed by “another information content provider”. Presumably the agreement between the Johnsons and Colton was the workaround here, but oddly, there was no conviction on the conspiracy charge. The court vaguely alludes to a “joint venture” but it’s unclear whether the jury made a finding to this effect. The section 230 issue is also present as to Gail’s and William’s liability for one another’s posts. The factual predicate for the agreement between Gail and William is a bit clearer, but the court still glosses over the possibility that Gail may have been a more passive participant. Eric has blogged a bunch about the conspiracy workaround to section 230 protection and premising liability without requiring proof of an agreement is problematic. Particularly so in the First Amendment context. [As with other cases, this case is a reminder of the risks of sharing email addresses. A bad idea for a variety of reasons, including that it puts you at risk for your co-account holder’s criminal acts that are planned via email!]

This case is close to a factual scenario that we see occurring with increasing frequency when people engage in interpersonal skirmishes online: (1) exposure or the threat of exposure of a putative victim’s personal information; and (2) the posting of ads or content that purport to be from the target (in this case, the craigslist ads) that result in droves of people trying to interact with the putative victim. I don’t know that this could amount to criminal harassment in all cases, but this case shows that with the right set of facts, courts will readily reject a First Amendment challenge to a conviction based on a campaign of harassment that involves this conduct. Perhaps what made this case easier is the extensive email trail and the cooperation of one of the perpetrators. A conviction is probably much tougher if you had a disparate group of people engaging in a mob-style campaign of harassment, but I imagine we may see that factual scenario tested soon as well.

As I read through the opinion, I wondered about the age of the parties. Both the Johnsons and the Lyonses seemed older to me, but that’s just based on anecdotal evidence, such as the shared account and the Lyonses’ unfamiliarity with craigslist. I wonder to what extent this figured subsconsciously in the court’s opinion. Would a pair of warring millenials have been treated differently?

Case citation: Commonwealth v. Johnson, 2014 WL 7261476 (Mass. Dec. 23, 2014)

Other coverage: ‘Cyber-harassment’ not protected free speech, Mass. high court rules

Revenge Porn/Cyberstalking Conviction Doesn’t Violate First Amendment–US v. Osinger

Are Parents Liable For Their Children’s Online Pranks?–Boston v. Athearn

Police Officers Aren’t Liable For Investigating Cyberstalking and Revenge Porn–Keaton v. Hannum

Contacting a Person’s Facebook Friends Isn’t Stalking–People v. Welte

Dead Sea Scrolls Impersonation Case Convictions Partially Affirmed

Ill-Advised Student YouTube Video Leads to Conviction For Misusing Computerized Communication System–In re Kaleb K.

California’s New Law Shows It’s Not Easy To Regulate Revenge Porn (Forbes Cross-Post)

Facebook Posting That Someone Has Herpes Is Criminal Harassment–Pennsylvania v. Cox

Court Denies Restraining Order Against Ex-Boyfriend Who Threatened to Post Revenge Porn — EC v. CBT

New Jersey Appeals Court Reverses Anti-Harassment Order Based on Emails – E.L. v. R.L.M