My partner Dan Lyne and I had the pleasure of acting as local counsel to über-blogger Eugene Volokh, an amicus curiae in Commonwealth v. Johnson an appeal from a Massachusetts cyber-harassment criminal conviction that will be heard by the Supreme Judicial Court early next month. The Johnsons had gotten into a real estate development dispute with their friends and neighbors, the Lyonses, and through a friend, they harassed the Lyonses via the internet. In particular, their friend, acting on their behalf, posted an ad on Craigslist advertising free golf carts available “first come first serve” in the Lyonses’ yard, with the predicable results.

The Johnsons were convicted under G.L. c. 265, § 43A, which provides:

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.

Professor Volokh’s excellent argument runs as follows:

1. In order to save the Massachusetts statute from constitutional challenge, the Supreme Judicial Court, in Commonwealth v. Welch, 444 Mass. 80 (2005), construed the statute to criminalize only “constitutionally unprotected speech,” e.g., speech that comes within the “fighting words” doctrine.
2. Under United States v. Alvarez, 132 S. Ct. 2537 (2012), knowingly false statements of fact such as the statements the Johnsons made are not “constitutionally unprotected speech” like fighting words, which do not implicate the First Amendment; rather, they receive intermediate scrutiny, which requires the government to show that the regulation of speech is narrowly tailored to advance a substantial government interest.
3. The SJC, having construed the statute narrowly in Welch, cannot now permissibly expand its interpretation to allow the Commonwealth to criminalize speech that is not constitutionally unprotected but rather that receives intermediate scrutiny. A layperson might be presumed to know, for example, that fighting words are unprotected, but he or she cannot be presumed to know what speech is criminal if the test is whether criminalization of the speech is narrowly tailored to advance a substantial government interest.
4. “knowing falsehoods inviting unwitting third parties to contact a targeted individual,” like fighting words, are “constitutionally unprotected speech.” But the SJC cannot construe the statute to limit its reach to invitations such as the Craigslist ad at issue in the case. “Nothing in the statutory text, or in the earlier decisions of this Court, suffices to put people on notice of any such distinction.”

Now, I have to say that I think what the Johnsons did was pretty blameworthy, and I’m not a First Amendment absolutist by any means. But I do think that Eugene’s argument is right on the money. Having construed the statute very narrowly in Welch, the SJC should not broaden the construction now, since no one in the Johnsons’ position would have reason to know that the statute reached their speech.

I’ll keep you posted on how the case comes out.