Commonwealth v. Bigelow

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SJC-11974

COMMONWEALTH vs. HARVEY J. BIGELOW.

Bristol. January 8, 2016. - September 27, 2016.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.1

Criminal Harassment. Constitutional Law, Freedom of speech and
press. Practice, Criminal, Argument by prosecutor.

Complaint received and sworn to in the Taunton Division of
the District Court Department on November 18, 2011.

The case was tried before Gregory L. Phillips, J.

The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.

Diana Cowhey McDermott for the defendant.
David B. Mark, Assistant District Attorney, for the
Commonwealth.

BOTSFORD, J. In 2013, the defendant Harvey Bigelow was

convicted of two counts of criminal harassment under G. L.

1
Justice Duffly participated in the deliberation on this
case and authored her separate opinion prior to her retirement.
Justices Spina and Cordy participated in the deliberation on
this case prior to their retirements.
 2

c. 265, § 43A (§ 43A). The charges were based on five letters

the defendant allegedly wrote and sent to Michael Costello and

Susan Costello2 in 2011, following a local election in the town

of Rehoboth (town) in which Michael had been elected as a town

selectman. We consider here the defendant's appeal from these

convictions; his principal claim is that both convictions must

be reversed because the letters consisted of political speech --

expressions of dissatisfaction with Michael's performance as a

selectman -- that is constitutionally protected. We reverse the

defendant's conviction of criminal harassment of Michael and

order that count of the complaint dismissed; we vacate his

conviction of criminal harassment of Susan, set aside the

verdict, and remand for a new trial on the count of the

complaint relating to Susan.

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, type-written letters that were mailed to their home.

The letters were addressed to both Costellos or to Susan, and

all were authored by the defendant.3

2
Because Michael Costello and Susan Costello share a last
name, we refer to each by his or her first name to avoid
confusion.
3
The defendant does not challenge on appeal the sufficiency
of the evidence that he was the author of the five letters, most
 3

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 of yourself for even suggesting that

anyone take you seriously as 'chairman of the board of

selectm[e]n.' It won't be long before you crash and burn big

time."4 The letter ended as follows:

"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

of which purported to be from "a concerned citizen," and
therefore we treat as established his identity as the author.
4
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
meeting[s] to stare you down, talk ou[t] of turn, criticize
-- just like you used to do. Look for the big shit
eatin[g] grins."
 4

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, "this is such a good letter I think

I will send it around and post it at Vino's."6

Attached to either the second or the third letter was a

separate, handwritten note that stated:

5
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.
6
There was no evidence that the letter was "posted" or made
public in any venue.
 5

"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 Horner 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
 6

State authorities; across the copy was a handwritten comment

stating, "Suzie -– Preview of Coming Attractions" (emphasis in

original). The fourth letter itself stated, "[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."

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 asked if Lorraine knew that

Michael had undertaken a series of criminal acts, including

stealing, and forging checks, and further that he "forged title

to his wife's car[,] set fire to his wife[']s house with her in

it[,] [and] screwed the cleaning lady then married her."7

After receiving and opening the first letter, Michael

brought it to the police. Thereafter, the police began an

7
We infer the reference was to Susan.
 7

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 the 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
 8

defendant guilty on both counts.8 He was sentenced to one year

of supervised probation, and as conditions of probation, was

ordered to stay away from Susan and to write a letter of apology

to the Costellos, with the letter to be published in three local

newspapers. The defendant filed a timely appeal and we

transferred this case on our own motion.

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 emotional distress."9 G. L. c. 265, § 43A (a). The

statute specifies that conduct or acts qualifying as criminal

harassment under its terms "shall include, but not be limited

to, conduct or acts conducted by mail." Id.

"[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,

8
The defendant moved for a required finding of not guilty
at the close of the Commonwealth's case; the motion was denied.
9
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).
 9

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 98-99.10 Accord, O'Brien, supra at 420, 425.11 We

10
In the Welch case, the court reversed the defendant's
convictions of criminal harassment and ordered the complaints
dismissed because there were an insufficient number of incidents
of alleged harassment to satisfy the statutory requirements of
"pattern" or "series." Welch, 444 Mass. at 93.
11
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
 10

added in the Welch case that "[s]hould the Commonwealth attempt

to prosecute an individual for speech that is constitutionally

protected, we would have no hesitation in reading into the

statute such a narrowing construction to ensure its application

only to speech that is accorded no constitutional protection."

Welch, supra at 100.12,13

conduct." See United States v. Stevens, 559 U.S. 460, 468-469
(2010), and cases cited.
12
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, 132 S. Ct.
2537, 2543 (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
 11

The defendant argues that § 43A only punishes

constitutionally unprotected speech, and that his convictions

cannot stand because each of the letters forming the basis of

itself -- but also is essential to the common quest for truth
and the vitality of society as a whole" [quotation omitted]).
13
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 interpretation does meet the
legislative goal, emphasized by the dissent, see post at , of
closing "a perceived loophole" in the criminal stalking statute,
G. L. c. 265, § 43, because the stalking statute requires proof
of an intent to place the alleged victim "in imminent fear of
death or bodily injury, see O'Brien, supra at 420 n.5 (citation
omitted; emphasis added), whereas § 43A, the criminal harassment
statute, has no such requirement of imminence. See id. For
this reason, the dissent's reliance on Commonwealth v. Walters,
472 Mass. 680 (2015), see post at note 4, is not directly
apposite because the cited language from Walters was considering
the stalking statute, not the criminal harassment statute.
 12

the charges qualified as constitutionally protected political

speech under the First Amendment to the United States

Constitution. In substance, the defendant's argument challenges

the sufficiency of the evidence: if the evidence of "conduct or

acts" of alleged criminal harassment consists solely of

protected speech, the Commonwealth did not, and cannot, meet its

burden of proving the defendant's guilt beyond a reasonable

doubt. We consider this argument in relation to each of the

charges separately.

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
 13

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 Michael14 are considered, their central thrust

is criticism of him as a selectman in the town; the personal

insults and allegations concerning Michael's alleged criminal

past and sexual improprieties appear to be intended to persuade

him to resign from his elected position. Because these letters

were directed at an elected political official and primarily

discuss issues of public concern -- Michael's qualifications for

and performance as a selectman -- the letters fall within the

14
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 "directed at"
Susan and Michael. We do not think that all five letters were
"directed at," or targeted, Michael, nor do we think all five
letters were "directed at," or targeted, Susan. It is true, as
the dissent points out, post at , that if a threat were
directed at Susan but contained in a letter addressed to Michael
and the letter were sent to him "with the reasonable expectation
that he would communicate [the threat] to her," the threat would
still qualify as a threat directed at Susan. But the dissent is
mistaken that we consider the same language in the same letter
to qualify as constitutionally protected political speech in
relation to Michael but unprotected speech in relation to Susan.
See post at . Rather, our analysis of the criminal
harassment complaint concerning Michael in large part considers
different language or content in different letters from what we
consider in relation to the criminal harassment complaint
concerning Susan.
 14

category of constitutionally protected political speech at the

core of the First Amendment. See Commonwealth v. Lucas, 472

Mass. 387, 392 (2015), quoting New York Times v. Sullivan, 376

U.S. 254, 270 (1964) ("Our constitutional system 'presupposes

that right conclusions are more likely to be gathered out of a

multitude of tongues, than through any kind of authoritative

selection. To many this is, and always will be, folly; but we

have staked upon it our all'"). Where matters of public concern

are the focus –- that is, "any matter of political, social, or

other concern to the community" (citation omitted), Snyder v.

Phelps, 562 U.S. 443, 453 (2011) -- the First Amendment

protections are often more rigorous than when matters of private

significance are at issue. See id. at 452.

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
 15

cannot be totally banned from the public dialogue"). But

Michael was an elected town official, and as Michael himself

testified, receiving mail from disgruntled constituents is usual

for a politician. A person "who decides to seek governmental

office must accept certain necessary consequences of that

involvement in public affairs . . . [and] runs the risk of

closer public scrutiny than might otherwise be the case." Gertz

v. Robert Welch, Inc., 418 U.S. 323, 344 (1974). Here, given

Michael's status as a selectman and the content of the letters,

it cannot be said that Michael's "substantial privacy interests

[were] invaded in an essentially intolerable manner." Cohen,

supra. See State v. Drahota, 280 Neb. 627, 630-631, 637-638

(2010) (defendant's abusive, outrageous, electronic mail

messages to former professor running for State elective office,

insofar as they did not qualify as fighting words, were

protected speech not subject to criminal punishment under

disturbing peace statute despite professor's previous

instruction not to send further messages). See also United

States v. Popa, 187 F.3d 672, 673, 677-678 (D.C. Cir. 1999)

(defendant's seven anonymous telephone messages left on United

States Attorney's office telephone, containing racial epithets

directed at United States Attorney and complaints about abusive

police officers, constituted protected speech directed at public

official; statute punishing anonymous telephone calls made with
 16

intent to annoy, abuse, threaten or harass held unconstitutional

as applied to defendant, requiring reversal of conviction);

State v. Fratzke, 446 N.W.2d 781, 784-785 (Iowa 1989) (First

Amendment precluded defendant from being punished under criminal

harassment statute for offensive, profane letter written to

State trooper to protest speeding ticket where no "fighting

words" were included). Contrast Hott v. State, 400 N.E.2d 206,

208 (Ind. Ct. App. 1980) (upholding defendant's conviction of

making indecent telephone call based on vulgar calls made to

police chief and prosecuting attorney at their respective homes

late at night to complain about police sergeant).

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 the conduct of (many) third
15
parties. See Welch, 444 Mass. at 99 n.15, quoting Giboney v.

15
In the Johnson case, the defendants twice posted false
advertisements on the Internet Web site "Craigslist" about items
 17

Empire Storage & Ice Co., 336 U.S. 490, 502 (1949) ("it has

never been deemed an abridgment of freedom of speech or press to

make a course of conduct illegal merely because the conduct was

in part initiated, evidenced, or carried out by means of

language, either spoken, written, or printed"). Here, however,

the defendant's speech did not initiate or carry out any

separate conduct that could be deemed harassing or illegal for

an independent reason (i.e., a separate crime). The only

conduct of the defendant's at issue is his writing and mailing

the anonymous letters; as previously indicated, there was no

evidence that the defendant's letters caused any other person to

undertake any type of action in relation to Michael.

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

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.
 18

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

distress was not caused by his own receipt of the letters but

rather was derivative of his wife's distress at her receipt of

them. Nothing the defendant did or said appeared to have

"seriously alarm[ed]" Michael directly. See Commonwealth v.

Braica, 68 Mass. App. Ct. 244, 247-248 (2007). Cf. Commonwealth

v. Kessler, 442 Mass. 770, 773-774 (2004) (prosecution for open

and gross lewd and lascivious behavior; insufficient evidence of

shock and alarm).
 19

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.16

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.17

Susan was married to Michael, but she was not a selectman, did

not hold any political office, and had not run for election. We

16
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.
17
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.
 20

do not agree with the defendant's suggestion that being married

to a public office holder makes one in effect his alter ego.

The defendant's speech directed at Susan, fairly considered, was

not an expression of political views about a public official but

rather a series of offensive personal comments about her and her

husband Michael. But the fact that the speech may not be

categorically protected as political speech does not mean that

it therefore automatically qualifies as constitutionally

unprotected speech. Given this court's interpretation of § 43A

and its underlying legislative intent, however, the speech must

fit in a category of unprotected speech if the defendant's

conviction of criminally harassing Susan based on the contents

of his speech is to stand. See Federal Communications Comm'n v.

Pacifica Found., 438 U.S. at 744 ("content and context of speech

are critical elements of First Amendment analysis").

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.18 In addition, for the

reasons we have previously stated, we disagree with the

Commonwealth that this case is like Johnson, and that the

18
"Fighting words" are words "which by their very utterance
inflict injury and 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.
 21

defendant's speech contained in the letters directed at Susan

was sufficiently intertwined with conduct to be treated as

unprotected. Contrast Johnson, 470 Mass. at 309-311. Nor is

there any suggestion that the letters contain other possible

categories of unprotected speech such as words that incite

violence, obscenity, defamation,19 or fraudulent speech. See,

e.g., United States v. Stevens, 559 U.S. 460, 468-469 (2010),

and cases cited. "True threats," however, are different. True

threats represent a category of unprotected speech that our

cases have noted is relevant to criminal harassment as defined

and proscribed by § 43A. See Johnson, 470 Mass. at 311 n.12.

See also O'Brien, 461 Mass. at 423-425 & n.7. We have stated

that:

"[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. . . .

". . .

"[T]he 'true threat' doctrine applies not only to
direct threats of imminent physical harm, but to words or

19
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).
 22

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 424-425.20 See Commonwealth v. Chou, 433 Mass.

229, 236 (2001) (true threats include "words that are intended

to place the target of the threat in fear, whether the threat is

veiled or explicit").

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

20
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 'protect[s]
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).
 23

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 constitutes a

threat or a true threat" [quotations and citations omitted]).

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
 24

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.21

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

21
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.
 25

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 being a public official, Susan's right of

privacy in her home was substantial. Cf. Frisby v. Schultz, 487

U.S. 474, 476, 484-485 (1988) (upholding content-neutral ban

against residential picketing: "The State's interest in

protecting the well-being, tranquility, and privacy of the home

is certainly of the highest order in a free and civilized

society . . . [and] individuals are not required to welcome

unwanted speech into their own homes" [quotations and citations

omitted]).

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
 26

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).22,23

22
We disagree with the dissent that our discussion of true
threat has "stretch[ed] 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 . 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 precedent. See
 27

Our determination that in relation to Susan, a fact finder

reasonably might find that the defendant's letters qualify as

true threats does not mean that the defendant is guilty of

criminal harassment; it means only that the speech on which the

complaint of criminal harassment is premised might be found to

qualify as fitting within a constitutionally unprotected

category of speech that may be subject to prosecution under

O'Brien, 461 Mass. at 423-425. (Our disagreement with the
dissent in this case, at least in part, seems to be based on
differing interpretations of the facts, not on the definition of
what constitutes a true threat.) As for subjecting "broad
swaths" of constitutionally protected speech to criminal
sanction, it would seem that the dissent's proposed
interpretation of § 43A, which explicitly permits
criminalization of constitutionally protected speech, has the
potential to place far more protected speech at risk of criminal
sanction than does our interpretation of the statute.
23
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 .
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.
 28

§ 43A as a form of criminal harassment.24 That is, in a

prosecution for criminal harassment under § 43A based solely on

a defendant's speech, if it cannot be concluded that, as a

matter of law, the speech at issue is constitutionally protected

speech, the question whether the speech fits within a category

of unprotected speech constitutes a question of fact for the

fact finder to decide. In this particular case, the question

whether the defendant's challenged speech at issue qualified as

true threats and therefore as constitutionally unprotected falls

under the first of the five elements of the crime, see McDonald,

462 Mass. at 240, because it represents an essential part of the

definition of "speech" as we have interpreted the term in the

Welch, O'Brien, and Johnson cases.

24
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.
 29

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).25 These instructions did not explain that the

"conduct or series of acts," G. L. c. § 43A (a), that the

Commonwealth claimed qualified as harassment consisted solely or

at least principally of speech -- i.e., the contents of the

letters. Nor did the instructions address specifically the

character -- protected or unprotected -- of the defendant's

25
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 distress, 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. . . ."
 30

speech on which the two counts of the complaint were based.

Although the defendant did not object to the instructions at

trial, the failure to instruct the jury that where the complaint

is based on incidents of pure speech, they must find the

defendant's challenged speech constituted a true threat -- and

therefore was constitutionally unprotected speech -- created a

substantial risk of a miscarriage of justice. Cf., e.g.,

Commonwealth v. Claudio, 418 Mass. 103, 117-119 (1994),

overruled on other grounds by Commonwealth v. Britt, 465 Mass.

87, 99-100 (2013) (failure of judge to define "felony" as

portion of charge on felony-murder, although not objected to at

trial, was of "sufficient magnitude" to require, along with

other instructional errors, reversal of defendant's convictions

of murder in first degree); Commonwealth v. Niziolek, 380 Mass.

513, 526-527, 529 (1980) (failure of judge to define one of

elements of arson, along with other instructional errors,

required reversal of arson conviction). Cf. also United States

v. Ream, 506 Fed. Appx. 842, 845 (10th Cir. 2013) ("Whether a

statement constitutes a true threat under 18 U.S.C. § 115

[threatening Federal official] represents a jury question"

[citation omitted]); State v. Moulton, 310 Conn. 337, 340, 362-

363 (2013) (offense of second-degree harassment proscribes

harassing speech as well as conduct, but "in order to ensure

that a prosecution under that [statute] does not run afoul of
 31

the [F]irst [A]mendment, the court must instruct the jury on the

difference between protected and unprotected speech whenever the

[S]tate relies on the content of a communication as substantive

evidence of a violation of [the statute]"; reversal of

defendant's conviction required on somewhat different grounds);

State v. Schaler, 169 Wash. 2d 274, 278 (2010) (provision of

State harassment statute must be read to proscribe only "true

threats"; jury instructions following statutory language

erroneous because failed adequately to limit jury's

consideration to true threats; reversal of conviction required);

State v. Perkins, 243 Wis. 2d 141, 145-146, 165-167 (2001) (jury

instruction on nature of threat required for conviction of crime

of threatening judge was inadequate because it may have "failed

to shield the defendant from a conviction based on

constitutionally protected speech"; conviction reversed). The

defendant is entitled to a new trial on the count of the

complaint alleging criminal harassment of Susan, a trial at the

conclusion of which the jury are to be instructed on the

unprotected character of speech that they must find the

Commonwealth to have proved beyond a reasonable doubt, along

with all the elements of the offense in order for the jury to

find the defendant guilty of criminal harassment.26

26
Where the Commonwealth asserts, for example, that the
defendant's speech is unprotected because it constitutes a true
 32

3. Prosecutorial error.27 We briefly address one of the

defendant's remaining claims insofar as it may arise again if

there is a new trial. The defendant claims that in the

prosecutor's comments about whether a reasonable person would

experience "substantial emotional distress," see § 43A (a), the

prosecutor erroneously asked the jurors to individually

"evaluate your feelings" after reading the letters and use

"common sense."

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

threat, the judge would have to explain to the jury that the
Commonwealth was required to prove beyond a reasonable doubt
that the defendant's words, considered in light of all the
surrounding facts that provide context, constituted a direct
threat of imminent physical harm to the alleged victim or caused
the alleged victim to fear physical harm now or in the future,
and must further prove that the defendant intended to cause such
fear. See O'Brien, 461 Mass. at 424-425.
27
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.
 33

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.
 DUFFLY, J. (dissenting, with whom Spina and Hines, JJ.,

join). I agree with the court that the defendant's conviction

of criminal harassment under G. L. c. 265, § 43A (§ 43A), as to

Michael Costello, should be reversed because the evidence

introduced at trial, in Michael's own words, did not establish

that he was "seriously alarm[ed]" by receipt of the defendant's

letter on at least three of the occasions that he received one.1

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

1
Because Michael Costello and Susan Costello share the same
last name, I refer to them by their first names.
 2

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"). 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 which 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 crime, causes the victim to fear harm, and does so in
circumstances that make the victim's fear justifiable."
 3

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 so 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 'protect[s] 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, "when viewed in
 4

context," 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.2 See ante

at .

The court's expansion of what heretofore have been "well-

defined and narrowly limited classes of" constitutionally

unprotected speech, O'Brien v. Borowski, supra at 422 (citation

omitted), results essentially in the creation of a broad and

amorphous category of unprotected speech. Where the conduct at

issue is speech, it also effectively eviscerates a critical

difference between the criminal harassment statute and the

2
The court notes that a jury may consider "surrounding
facts that provide context" in order to find that a defendants
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.
 5

stalking statute (criminalizing "[w]hoever [1] 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 or annoys that person and would cause a

reasonable person to suffer substantial emotional distress, and

[2] makes a threat with the intent to place the person in

imminent fear of death or bodily injury"). See G. L. c. 265,

§ 43 (a); Commonwealth v. Walters, 472 Mass. 680, 691 (2015)

("Comparing the definition of 'true threat' to the threat

component of the stalking statute, we conclude that any verbal

or written communication that qualifies as a threat as defined

in the statute is also a 'true threat,' and therefore is not

entitled to protection under the First Amendment").

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.3 Nor, despite its

3
The court describes the speech directed at Susan in the
last two letters as containing "vulgar and hateful insults" in
language that could "reflect[] . . . an obsessive interest in"
private matters, "especially her marital relationship." Ante at
. 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
 6

efforts to distinguish specific portions of the letters as

directed at one or the other, does it explain how statements in

a letter addressed to a husband and wife, in their home, are

protected political speech as to him, while, as to her, the

statements constitute constitutionally unprotected speech that

leaves the defendant subject to criminal liability not only

under § 43A, but presumably under other criminal statutes such

as G. L. c. 275, § 2, threatening to commit a crime. See

Commonwealth v. Sholley, supra. Instead, in the court's view,

because the letters were anonymous, Susan was unable to evaluate

the nature of the author's intent, which the court posits is

sufficient to instill a greatly increased fear of future harm.

Ante at . Thus, Susan's imagination as to what the author

might have been intending is now enough to "cause the victim to

fear [physical] harm," O'Brien v. Borowski, supra at 425, a far

cry from the well-established definition of a true threat

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 appears 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.
 7

discussed in Commonwealth v. Sholley, supra.4 This cannot be

what the framers intended in drafting the First Amendment.

4
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
 8

The court's attempt to distinguish the speech in the

letters it deems directed at Susan rather than at Michael

(although the parties, here and at trial, treated all of the

letters as having been sent to both Michael and Susan) does not

provide the support it seeks in this distinction. If Susan were

the intended victim, a threat to her, communicated in a letter

to Michael, with the reasonable expectation that he would

communicate it to her, is no less a true threat than one sent to

Susan directly, and whether the statement constituted a true

threat (as opposed to whether the defendant's conduct met the

requirements of § 43A) is determined based on an objective,

reasonable person standard. See, e.g., Commonwealth v. James,

73 Mass. App. Ct. 383, 385-387 (2008), and cases cited ("When a

defendant utters a threat to a third party who would likely

communicate it to the ultimate target, the defendant's act

constitutes evidence of his intent to communicate the threat to

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."
 9

the intended victim"). Similarly, a threat to Michael,

delivered in a letter addressed to Susan, would likewise be a

true threat.

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.5 See ante at , .

Applying the court's analysis, however, it would appear equally

likely to be a potential threat to Michael, intended to be

communicated through Susan. Similarly, the fifth letter,

addressed to "Lorraine," in an envelope addressed to "Susan 'The

Maid' Costello," also contained comments about Michael's

performance as a selectman that might be viewed as a threat

under the court's analysis, and that seemingly were intended to

be communicated to him.6 In addition, both the first and second

letters stated that the defendant intended their content to be

5
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 .
6
The letter stated, as the court notes, that Michael
"forged title to his wife's car[,] 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."
 10

distributed publically.7 See Commonwealth v. Walters, 472 Mass.

680, 693 (2015), and cases cited ("Where communication of the

threat is indirect -- for example, through an intermediary --

the Commonwealth must prove beyond a reasonable doubt that the

defendant intended the threat to reach the victim"). In any

event, a "true threat" is no less a threat because it involves a

political subject or is directed at a politician. See Virginia

v. Black, 538 U.S. 343, 358-361 (2003); Watts v. United States,

394 U.S. 705, 707-708 (1969) (per curiam).

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).8 Commonwealth v.

7
"This letter will be all over town by then as well as at
the selectmen['s] meeting"; "This is such a good letter I think
I will send it around and post it at Vino's."
8
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.
 11

Williams, 395 Mass. 302, 304 (1985).9 Based on this expansive

view of a "true threat," no reasonable person would be able to

ascertain the nature of the prohibited conduct to be avoided so

as not to be subject to criminal liability. Conduct that is so

broad and vague that it is not readily discernable cannot

constitutionally support a criminal conviction.

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 restriction on

political speech near polling sites necessary to serve

9
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 , 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.
 12

"compelling State interest" and "narrowly drawn to achieve that

end" [citation omitted]); Ward v. Rock Against Racism, 491 U.S.

781, 803 (1989) (upholding regulation of constitutionally

protected speech); Lehman v. Shaker Heights, 418 U.S. 298, 302-

303 (1974), and cases cited ("Although American constitutional

jurisprudence, in the light of the First Amendment, has been

jealous to preserve access to public places for purposes of free

speech, the nature of the forum and the conflicting interests

involved have remained important in determining the degree of

protection afforded by the Amendment to the speech in

question").

Although the court's decision in Commonwealth v. Welch, 444

Mass. 80, 98-100 (2005) (Welch), commented that it would "no[t]

hesitat[e]" 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.10 While the court states today that

10
In Commonwealth v. Welch, 444 Mass. 80, 82-83 (2005)
(Welch), 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
 13

it must interpret § 43A as applicable only to unprotected

speech, such as a true threat, or the provision would run afoul

of constitutional protections, I do not agree that

constitutionally protected speech must, in all circumstances,

categorically be excluded from prosecution under § 43A, given

that the statute considers specific types of harassing speech in

conjunction with a pattern of conduct or series of acts. The

United States Supreme Court has noted that "the States are free

to ban the simple use, without a demonstration of additional

justifying circumstances, of so-called "fighting words," Cohen

v. California, 403 U.S. 15, 20 (1971), citing Chaplinsky v. New

Hampshire, 315 U.S. 568 (1942), but government also retains the

ability, "consonant with the Constitution, to shut off discourse

solely to protect others from hearing it . . . upon a showing

that substantial privacy interests are being invaded in an

essentially intolerable manner," even where the speech at issue

otherwise would be entitled to constitutional protection. Cohen

v. California, supra at 21. A conclusion that § 43A may never

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.
 14

apply to protected speech is inconsistent with these well-

established principles, and would eviscerate the legislative

purpose underlying its enactment.

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]talkers who become lethal

move from non-threatening 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
 15

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 occasions, removes the majority of protected

speech from the statute's reach, and ensures, in the plain

language of the statute, that § 43A will not apply to any

speaker who disseminates a political, religious, or other

protected message to a general audience, albeit that the message
 16

contains vulgar, offensive, or disturbing speech. Cf. Frisby v.

Schultz, 487 U.S. 474, 483 (1998). Additionally, to support a

conviction under § 43A, the fact finder must determine that each

of the three acts to which liability attaches would be

understood as "harassing" by a reasonable person, ensuring that

a defendant is not "at the mercy of a hearer's sensitivities."

Commonwealth v. Johnson, supra at 308. Cf. Texas v. Johnson,

491 U.S. 397, 409 (1989) (distinguishing between expressions of

dissatisfaction with political policies and direct personal

insults); Van Liew v. Stansfield, 474 Mass. 31, 38-39 (2016)

(addressing insults about local public official's performance as

political speech). Thus, rather than the expansion of the

meaning of a "true threat" that the court undertakes, § 43A

could be viewed as adequately ensuring that constitutionally

protected speech is not penalized, while, at the same time,

avoiding "negat[ing] the Legislature's clear attempt to protect

victims of harassment before that behavior escalates into more

dangerous conduct."11 See Commonwealth v. O'Neil, 67 Mass. App.

Ct. 284, 293 (2006).

11
"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).
 17

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.