On Dec. 23, 2014, the Supreme Judicial Court (SJC) of Massachusetts affirmed a lower court’s ruling against a pair of defendants that harassed their neighbors through, among other means, internet postings.  The Massachusetts couple had been convicted under the state’s criminal harassment statute, G.L. c. 265 § 43A (a).

“Where the sole purpose of the defendants’ speech was to further their endeavor to intentionally harass the [victims], such speech is not protected by the First Amendment,” the court wrote.

There is a common misconception that online bullying is only an issue with teens and younger children.  However, there have been countless “adult” harassment campaigns launched for the purpose of alarming, scaring or harming the reputations of others.

In fact, most states have enacted statutes addressing cyber harassment and/or cyber stalking, although most internet offenses in the manner of or akin to sending harassing emails or publishing harassing internet posts are not punishable as crimes.  In Commonwealth v. Johnson, however, the defendants were prosecuted by the state for violating an applicable criminal statute.

Case background

Current state representative Jim Lyons and his wife, Bernadette, lived on the same Andover, Mass., street as defendants William and Gail Johnson.  Over several years, their relationship turned sour, in large part due to the Lyonses and other neighbors objecting to the Johnsons plans to subdivide and develop land they acquired next to the Lyonses’ property.

In early 2008, William Johnson enlisted an old friend, Gerald Colton, to help him “prank” the Lyonses.  First, Colton posted a Craigslist ad for free golf carts available on a “first come, first serve” basis at the Lyons residence.  The Lyonses, who did not own any golf carts, soon after found dozens of strangers on their property and also received numerous phone inquiries after Colton published their address and phone number.

Then, Colton published a second Craigslist ad purporting to sell a motorcycle, which communicated that the parties were supposed to phone Jim Lyons on his cell phone after 10 p.m.  For months, Jim Lyons received “non-stop” phone calls late in the evenings about the fictitious motorcycle.

Next, Colton, using a “fake” email account, sent the Lyonses an email that contained the Lyonses’ personal information, such as social security numbers and bank names, accompanied by the text “Let the Games Begin!”  The following evening, William Johnson used Colton’s phone to call the Department of Children & Families to falsely report alleged child abuse by Jim Lyons, which prompted a police investigation.

Finally, Colton sent an anonymous email to the Lyonses from another fake account alleging Jim Lyons “stole the innocence of a young man.”  Soon after, Jim received a letter in the mail from “Brian,” who accused Jim of sexually molesting him as a teenager and threatened to press charges.

Later that year, Colton was charged with stalking and identity fraud.  After his release from a 17 day stay in jail, he implicated the Johnsons and testified against them.  A few months later, the Johnsons were charged with making a false report of child abuse, as well as identity fraud, conspiracy and criminal harassment.

Then, in December 2011, a jury convicted both Johnsons of criminal harassment and individually convicted William Johnson of making the false child abuse report.  William and Gail were sentenced to 18 months and six months in jail, respectively.

The SJC transferred the couple’s appeal to the court and ultimately determined the trial court judge’s rulings were correct.

SJC’s opinion

As stated in the court’s opinion, the Johnsons’ 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.”

Although the Johnsons attempted to argue, among other reasons, that the criminal statute did not apply to them because they had not communicated “fighting words” and some of their actions were directed toward third parties (not the actual Lyonses), the court found the statute was  constitutional as applied to them.  More specifically, the SJC determined the following elements of the statute were satisfied:

  • The Johnsons knowingly engaged in this pattern of conduct or speech on “at least three separate occasions”;
  • The Johnsons intended to target the Lyonses with their conduct in each instance;
  • The Johnsons’ conduct “seriously alarmed” the Lyonses;
  • The Johnsons’ conduct “would cause a reasonable person to suffer emotional distress”; and
  • The Johnsons had acted “willfully and maliciously.”

While this case goes beyond internet postings (the false child abuse report), the opinion –  as it pertains to the First Amendment aspect of the case – states that “[s]peech held integral to criminal conduct is one such long-standing category that is constitutionally unprotected, directly applicable to the defendants’ conduct here, and permissibly proscribed by § 43A (a).”

Takeaways

Prior to Commonwealth v. Johnson, the SJC had never applied the criminal harassment statute to such a case.  But people and businesses are increasingly being harassed online today by others creating false postings on Craigslist, fake social media profiles and websites solely intended to harass and cause harm to the intended victims.

This precedent-setting Massachusetts case will obviously be impactful locally, and it may very well also be considered by victims and their counsel, courts and even lawmakers in other states.  While many cases involving internet speech do not or would not give rise to criminal causes of action, whether or not there is a criminal law on the books, Commonwealth v. Johnson does help open the door for legitimate arguments for application of criminal harassment statutes.

We recommend that parties who are the victims of similar online harassment engage counsel familiar with cyber investigations and/or internet defamation to help assemble evidence that could be meaningful to law enforcement.  These cases and the ramifications of them can be complex, and law enforcement may not initially choose to independently investigate these types of matters.