In a 2015 case (Commonwealth v. Walters, 472 Mass. 680 (2015)) watched closely by women’s groups, free speech proponents and domestic violence advocates, the Supreme Judicial Court of Massachusetts recently reversed a stalking conviction based on a Facebook profile page containing a picture of the defendant seated smiling, with a gun in his lap, and indicating that his favorite quotation is, “Make no mistake of my will to succeed in bringing you two idiots to justice.”

After the victim was shown the Facebook page by her boyfriend, and was “terrified” by it, the defendant was charged with, and ultimately convicted by a jury of, violating the Massachusetts stalking statute, G. L. c. 265, § 43 (a).  The statute says in part that “[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, shall be guilty of the crime of stalking. . . .”

Some of the facts of the case were that the defendant and victim had dated for years, owned and occupied a house together, and at one point were engaged to be married.  After the victim broke up with the defendant and started dating a police officer, the defendant became aggressive and started to display his guns more openly in the presence of the victim, as well as talking about guns while in her presence, although never actually threatening her.  He was also physical with the victim on at least one occasion, and would follow her and confront her in public.  The victim was ultimately able to obtain a restraining order in the District Court against the defendant pursuant to G.L. c. 209A.

By the time of the Facebook post, approximately three years had apparently passed since the last incident of bizarre behavior.  Then, the victim’s boyfriend became aware that the defendant had emailed a city council member asking that he be investigated, and so decided to check the defendant’s Facebook page, leading to the discovery of the offensive material.  The victim’s boyfriend then showed her the Facebook material, which she testified made her feel “terrified.”

Reversing the jury’s verdict, the SJC held that, “although content posted to Facebook may qualify as a threat as defined in the statute, in this particular case, a reasonable jury could not have found that the defendant’s Facebook profile page constituted such a threat.”

The SJC’s decision was based in significant part on First Amendment law, which holds that laws that forbid speech based on its content are presumptively invalid, but also that “certain well-defined and narrowly limited classes of speech,” including “true threats” do not receive constitutional protection.  The Court cited United States Supreme Court precedent defining threats as “those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. . . .”  The Court then held that “although communication of a threat to its intended victim is not expressly required under [the Massachusetts stalking statute] we [hold] that evidence of the defendant’s intent to communicate the threat through direct or indirect means is necessary.”

The Court then reasoned that because, among other things, several years had passed before the defendant posted the offensive material, and the defendant’s reference to bringing “idiots to justice,” could refer to lawful conduct, that there was insufficient evidence of intent to convey a threat.

In holding that the defendant could have been convicted had there been an actual intent to convey a threat, despite the fact that it was “only” a Facebook post, the SJC didn’t exactly espouse a novel theory of criminal liability, as evidenced by the fact that the statute specifically states that stalking can be committed by “conduct, acts or threats 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.”  Phew!

Attorney Kevin D. Quinlan


Uxbridge, Worcester County, Massachusetts

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