COMMONWEALTH vs. HARVEY J. BIGELOW.

BOTSFORD, J. In 2013, the defendant Harvey Bigelow was convicted of two counts of criminal harassment under G. L. c. 265, § 43A (§ 43A). The charges were based on five letters the defendant allegedly wrote and sent to Michael Costello and Susan Costello [Note 2] 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. [Note 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

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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." [Note 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 all over town by then as well as at selectmens'[sic] meeting. You really fucked up this time Mikey boy." [Note 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." [Note 6]

Attached to either the second or the third letter was a separate, handwritten note that stated:

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"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 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

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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." [Note 7]

After receiving and opening the first letter, Michael brought it to the police. Thereafter, the police began an 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 defendant guilty on both counts. [Note 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

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emotional distress." [Note 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, 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. [Note 10] Accord, O'Brien, supra at 420, 425. [Note 11] We 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

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speech that is accorded no constitutional protection." Welch, supra at 100. [Note 12], [Note 13]

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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 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 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 Michael [Note 14]

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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 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 cannot be totally banned from

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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 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

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

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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).

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. [Note 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. [Note 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 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

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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. [Note 18] In addition, for the reasons we have previously stated, we disagree with the Commonwealth that this case is like Johnson, and that the 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, [Note 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. . . .

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". . .

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

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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 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. [Note 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 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

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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 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). [Note 22], [Note 23]

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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 § 43A as a form of criminal harassment. [Note 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

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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.

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). [Note 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 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

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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 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. [Note 26]

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3. Prosecutorial error. [Note 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 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

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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. [Note Duffly-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, 359360 (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 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

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

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 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. [Note Duffly-2] See ante at 568.

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

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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 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. [Note Duffly-3] Nor, despite its 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,

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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 568. 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 discussed in Commonwealth v. Sholley, supra. [Note Duffly-4] This cannot be what the framers intended in drafting the First Amendment.

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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 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. [Note Duffly-5] See ante at 557, 567-568. 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. [Note Duffly-6] In addition, both the first and second letters stated that the defendant intended their content to be distributed publically. [Note Duffly-7] See Commonwealth v. Walters, 472 Mass. 680, 693

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(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). [Note Duffly-8] Commonwealth v. Williams, 395 Mass. 302, 304 (1985). [Note Duffly-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

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restriction on political speech near polling sites necessary to serve "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. [Note Duffly-10] While the court states today that 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 socalled "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

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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 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 nonthreatening 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 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,

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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 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." [Note Duffly-11] See Commonwealth v. O'Neil, 67 Mass. App. Ct. 284, 293 (2006).

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.