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Massachusetts Supreme Judicial Court Rules Criminal Harassment Statute is Constitutional

The Massachusetts Supreme Judicial Court today rejected an argument that the criminal harassment statute violates the First Amendment to the United States Constitution and ruled that the law is constitutional.  The name of the case is Commonwealth v. Johnson.

The defendants, William and Gail Johnson, are a married couple who were convicted in Lawrence District Court of criminal harassment following a longstanding feud with their neighbors.  The defendants and the victims have lived on the same street in Andover for 14 years.  In 2003, the defendants obtained a piece of land that abutted the victims’ property.  When the defendants announced plans to divide and develop their new land, the victims and other neighbors objected, and the result was a years-long lawsuit between the parties.

During a 35-day stretch in 2008, the defendants worked with their childhood friend, Gerald Colton, to engage in a campaign of harassment against the victims.  First, at the direction of William Johnson, Colton posted an ad on Craigslist stating that there were free golf carts available to be picked up at the victims’ home.  The ad listed the victims’ home phone number and address and resulted in 30 to 40 people showing up to “claim” the golf carts, in addition to numerous people calling their house.  The following day, Colton posted a second ad on Craigslist stating that the victims were selling their late son’s motorcycle and asking interested parties to call one of the victims on his cell phone after 10:00 p.m.  This ad resulted in months worth of late-night telephone calls to the victim’s cell phone.  About a week later, Colton sent an email to the victims from a fictitious account that read, “It’s just a game for me” and “Let The Games Begin… Remember, if you aren’t miserable, I ain’t happy!  Let’s Play.”  The email contained the victims’ names, telephone number, social security numbers, and bank name, which Gail Johnson had provided to Colton.  The following night, William Johnson called the Department of Children and Families (DCF) to report that one of the victims was abusing his son.  Two DCF caseworkers arrived at the victims’ home at 10:30 p.m. to investigate the alleged abuse and examine the son, who had to be woken up.  Finally, William Johnson sent one of the victims a letter accusing him of sexually molesting a teenager.  The Commonwealth’s theory of the case was that the William and Gail Johnson worked together with Colton as joint venturers to harass the victims.  After Colton was charged with stalking and identity fraud, he entered into an agreement with the prosecutor to testify against the defendants.

In 2011, a jury convicted William Johnson of criminal harassment and making a false report of child abuse.  He was sentenced to two and a half years in jail with 18 months to serve.  Gail Johnson was convicted of criminal harassment and sentenced to two years in jail with six months to serve.  They both appealed, arguing that the criminal harassment statute is unconstitutional.

In order to obtain a conviction for criminal harassment, the Commonwealth has to prove beyond a reasonable doubt that: (1) the defendant engaged in a knowing pattern of conduct, speech, or acts at least three times; (2) the defendant intended to target the victim with the conduct, speech, or acts each time; (3) the conduct, speech, or acts seriously alarmed the victim; (4) the conduct, speech, or acts would have caused a reasonable person to suffer substantial emotional distress; and (5) the defendant acted willfully and maliciously.   The defendants argued that the law was unconstitutionally vague and it punished “speech” that is protected by the First Amendment.  The Supreme Judicial Court rejected the defendants’ arguments.

The Court first pointed out that the law prohibits conduct rather than speech.  To the extent that speech is wrapped up in the harassing conduct, the speech is not constitutionally protected because by definition it requires malicious intent on behalf of the defendant and substantial harm to the victim.  The Court wrote that because the sole purpose of the defendants’ speech was to intentionally harass the victims, the speech is not protected by the First Amendment.  Finally, the Court concluded that the Commonwealth had proven all of the elements of the statute beyond a reasonable doubt against both defendants, and their convictions were supported by the evidence.

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