Using Craigslist as a Weapon

Craigslist is a popular online venue for all kinds of transactions and advertisements. But one Massachusetts couple recently found themselves on the guilty end of a criminal harassment conviction after using the site as a vehicle for cyber-harassment. And the Supreme Judicial Court affirmed their convictions in its decision: Commonwealth v. Willam P. (& Gail M.) Johnson, SJC-11660, slip op. (December 23, 2014).

One central issue in the case was whether false communications made to third parties through the internet postings solely for the purpose of encouraging those parties to also engage in harassing conduct towards the targets was speech protected by the First Amendment to the United States Constitution or was unprotected speech integral to the commission of the crime.

The Court referenced two examples of how the Johnsons used Craigslist as part of their harassing behavior. First, an advertisement was posted on the site listing the name, home telephone number and address of the victims, and stated that there were free golf carts available on a “first come, first serve” basis. The victims owned no golf carts. About thirty to forty people arrived at the victims’ home looking for the free carts, and an unknown additional number called inquiring about them. The second, a post advertising the sale of the victims’ “late son’s” motorcycle was created, instructing interested parties to call the victim’s cellular telephone after 10PM. The victims had no “late son,” and received “non-stop” calls at a rate of approximately twenty every ten minutes. These late calls continued months after the original posting.

A criminal conviction under G.L. c. 265, § 43A (a) 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. McDonald, 462 Mass. 236, 240 (2012).

There were other harassing acts described in the Court’s ruling, including a false report to the Department of Children and Families that the victims were engaging in child abuse, an anonymous email received by the victims containing all of their personal identification information, which was threatened to be made public, and an anonymous letter received in the mail accusing one of the victims of sexually molesting a fictitious individual when that individual was only fifteen years old.

As to the Johnsons’ argument that their speech was constitutionally protected, the Court opined, “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 First Amendment does not provide a defense to a criminal charge simply because the actor uses words to carry out his illegal purpose.’ United States v. Barnett, 667 F.2d 835, 842 (9th Cir. 1982).” The Court also went on to say, “While the content of the speech in question certainly affected the [victims], much of the alarming impact was the product of the frightening number, frequency, and type of harassing contacts with which the defendants bombarded the [victims].”

The facts of this case, and its resulting judgment should serve as a wake-up call for anyone using the internet to interact with another person. If you have questions about how these or other legal developments affect you, call the attorneys at Hutchins Law, P.C.

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