Just because you use words, it doesn’t mean your conduct is First Amendment protected

Free Golf Carts!  Just go to Prenda Law's headquarters.  They're giving them away, first come-first served!!!!

Free Golf Carts! Just go to Prenda Law’s headquarters. They’re giving them away, first come-first served!!!!

The Massachusetts Supreme Judicial Court just issued a unanimous opinion in Commonwealth v. Johnson – a case in which William and Gail Johnson found themselves on the ass-end of a prosecution after engaging in a pretty persistent course of harassment.

The Johnsons were convicted under Mass. Gen. L. c. 265, § 43A:

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 emotional distress, shall be guilty of the crime of criminal harassment and shall be punished by imprisonment in a house of correction for not more than 2 ½ years or by a fine of not more than $1,000, or by both such fine and imprisonment. The conduct or acts described in this paragraph shall include, but not be limited to, conduct or acts conducted by mail or by use of a telephonic or telecommunication device or electronic communication device including, but not limited to, any device that transfers signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electronic or photo-optical system, including, but not limited to, electronic mail, internet communications, instant messages or facsimile communications.

William was also convicted of making a false, or “frivolous,” report of child abuse.

The First Amendment guy in me had an immediate knee-jerk reaction to this. In fact, I started a blog post railing about how Massachusetts failed the First Amendment. Then I read the opinion. I still fought to keep the original post about how this was a horrible attack on our civil liberties. By the time that draft was finished, it was full of such equivocation and backflips of logic that I realized something — my original thought was completely wrong.

This decision is right.

The facts are as follows:

William and Gail Johnson got a hair up their ass against the Lyons family. So, the Johnsons themselves or through Mr. Colton, their accomplice, posted an ad on Craigslist, which instructed readers that there were free golf carts at the Lyons’ home, and a crowd showed up. (Op. at 6) When Craigslist took the ad down, they put it back up. (Op. at 6) Then they put up another ad, saying that they had “their late son’s motorcycle” for sale, and that interested parties should call after 10 pm. (Op. at 7). Then, they called in a fake child abuse report. (Op. at 7-8). Then, they staged a fake “sexual abuse” story from Mr. Lyons’ past. (Op. at 8-9).

The Johnsons argued that the statute was unconstitutional, as it was overly broad and vague in that it had a likelihood of sweeping up constitutionally protected speech. The SJC disagreed.

[A]s the statute requires both malicious intent on behalf of the perpetrator and substantial harm to the victim, “it is difficult to imagine what constitutionally-protected speech would fall under these statutory prohibitions.” Contrary to William’s claim, the statutory elements such as “seriously alarms” “are not esoteric or complicated terms devoid of common understanding.” Rather, these elements are similar to those that have led courts in other jurisdictions to uphold their criminal harassment statutes as constitutionally
permissible. (Op. at 14)

Mr. Johnson claimed that the statute “leaves it to the hearer of the speech to determine what conduct
is criminal
,” but that seems to have little support. The court noted that to sustain a conviction, “the Commonwealth must prove that a defendant knew he or she was engaged in a pattern of conduct that intentionally targeted a victim for the purpose of harassment with acts of such a nature that they would cause a reasonable person to suffer substantial emotional distress.” (Op. at 14-15)

This is the area were I get concerned when I hear about laws like this. I get worried that the local victims’ studies department will tell every one of its idiots to call in a complaint, that they “feel threatened” by criticism or an opposing viewpoint. Hey, it happens all the time — and is happening right now in Massachusetts. (source)

But, despite my initial fear of the censorship boogeyman, the statute seems to be narrow enough with strict enough requirements that make it unlikely, if not impossible, for a defendant to be liable under § 43A(a) for mere misunderstandings. Further, it does not seem to be broad enough that it would apply to a greater extent if the subject was thin-skinned or simply trying to “play the victim” to go on the offense against a critic. The law requires an intent to cause harm and then the conduct is evaluated not from the perspective of the victim, but from the perspective of a “reasonable person.”

The Johnsons’ next argument really pissed me off once I thought about it. As someone who loves the First Amendment, I really despise it when dipshits try and say that anything with words in it is automatically protected speech. (Cockpunch for anyone who says “fire in a crowded theater” though).

Yes, the Johnsons’ conduct used words. But, those words were not there to share ideas. Those words were not there to communicate a point of view. Those words were simply used to fill ads and false police reports in order to ensure that the harassment took place.

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 [F]irst [A]mendment does not provide a defense to a criminal charge simply because the actor uses words to carry out his illegal purpose.” United States v. Barnett, 667 F.2d 835, 842 (9th Cir. 1982).(Op. at 16)

Lets face it, if it did, then how could we ever proscribe bribery, extortion, or incitement to imminent lawless action? The First Amendment protects a lot, but you don’t get a pass for harassment just because you used words to put the plan together.

Remember back at the beginning of this post, where I had that little introspective moment? You think that Johnson’s lawyer might have one?

“As long as the United States of America has been a country, free speech has been one of our highest priorities,” said Robert Sinsheimer, William Johnson’s appellate lawyer.

“My client’s statements may have been anti-social, they may have been sophomoric, but they did not violate the Constitution. They were not fighting words and they were not threats.” (source)

Well of course they “did not violate the Constitution.” No speech violates the Constitution, jackhole. The state violates the Constitution, not the defendants. The question is if punishment for that speech violates the Constitution. Your douchebag clients managed to step over the line, and the statute is not unconstitutional. So MARK IT ZERO, SMOKEY. This is not ‘Nam. There are rules, and the Johnsons broke them.

And not a single hair on the ass of the founding fathers is stirring because the Johnsons have entered a world of pain.

Now, mind you, this is a far cry from the recent arrest of a Massachusetts man for making a statement online that he would “put wings on pigs.” (source) That case is a whole ‘nother thing. Lets note the elements of the crime – it is not a “pattern,” it is not “directed at a specific person,” and frankly, a “reasonable person” would not feel alarmed at such a statement. (Of course, a reasonable person might take issue with it, but that’s a different thing). That statement, unless it is inciting imminent lawless action, would not be illegal.

So, do we know where the line is now?

Good. Now go watch “The Interview.”

5 Responses to Just because you use words, it doesn’t mean your conduct is First Amendment protected

  1. All very good, but you can’t make me watch The Interview. Even if the NK’s did it.

    Word.

  2. > Just because you use words, it doesn’t mean your conduct is First Amendment protected

    Wait, does this invalidate the, “It’s not rape if you yell, ‘SURPRISE!'” defense?!

  3. lazlo toth says:

    Great post – I know I have to fight the urge to think speech is being punished or suppressed in almost any situation and occasionally I conclude that’s not the case – here, along a continuum of obvious political speech that need to be protected on one end and perhaps perjury at the other (where it’s pure speech but it’s a lie under oath and you can’t hide behind the First Amendment for protection) I’d put the defendants’ conduct somewhere beyond something like fraud in terms of culpability – the speech is inseparable from, and an essential component of, the bad action, and the bad action can’t be excused because the First Amendment protects speech because the act is still a punishable action – speech being a tool for committing the bad act just as using Craigslist and complaint forms are tools for committing the bad act.

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