Judges and commentators broadly agree that there must be a “true threats” exception to the First Amendment (as the Supreme Court has repeatedly held). But it’s often not clear whether a particular statement falls within it; this Appeals Court of Massachusetts decision from last Friday (Commonwealth v. Cristino) is an interesting illustration of a court skeptically viewing the prosecution’s claim of threat:

After a jury trial, the defendant was convicted of two counts of stalking pursuant to G. L. c. 265, § 43(a). On appeal, he argues that the evidence presented was insufficient to establish the requisite elements of the offense, and that the judge’s denial of his motion for a required finding of not guilty was erroneous. We reverse.

Background. The victims of the defendant’s alleged stalking are the chief of police and deputy chief of police in Milford. The evidence against the defendant came primarily from a series of Facebook posts that he made, where he openly criticized the two heads of the police department and accused them of corruption, drinking on the job, abusing alcohol, and having improper relationships with local drug dealers and criminals. A total of seventeen videos from Facebook were submitted in evidence after having been posted to his private, personal page.

There was also evidence of signs the defendant posted on his property, which was on Milford’s Main Street. The signs contained derogatory statements about the chief and deputy chief [“F— you, chiefs of police" and “Milford police chiefs, kings of Budweiser"]. Finally, the chief of police testified that he had observed the defendant following him in his car while driving through the town. [The record suggests that all accusations by the chief of the defendant following him occurred on public roads and never at the chief’s home.]

The substance of the Facebook videos in question varied from complaints about the chief and deputy chief, threats to take them to court, accusations that they were regularly drinking at a local restaurant and bar named Isabel’s, and several videos depicting either the chief’s or the deputy chief’s vehicles in the parking lot at Isabel’s or parked nearby. Mixed in throughout the videos are various statements which arguably, if taken alone, could be considered to be threats. These include the defendant saying he was going back to “old school” in a video in which he criticized the chief and deputy chief for spending time with criminals and stating that they, and the town, were “bananas.” In a separate video, while addressing “Chiefy Weify,” the defendant stated: “I’m not afraid of you. You’re afraid of me, and I would be too.” In a broader sense, this video portrays the defendant recording himself while accusing the chief and deputy chief of using drugs and associating with drug dealers. Finally, when speaking to the unknown person who removed a license plate from his vehicle, the defendant said, “I hope they catch you. Better them catching you than me anyway, because I’d grab you by the hair and keep you here or a couple of stomps on your face.” [Footnote moved: The defendant surmises in this video that his license plate was stolen by the deputy chief’s child, but does not offer any basis for this accusation. Regardless, the deputy chief’s son is not a complainant in this matter.]

To be found guilty of stalking, it must be proven that a person “(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 intent to place the person in imminent fear of death or bodily injury.” …

On appeal, the defendant argues that there was insufficient evidence to prove: that his Facebook posts were “directed at” either alleged victim; that he indicated an intent to physically threaten either of the officers; that the officers’ fear was reasonable; and that he intended to communicate a threat of bodily injury. He further argues that his Facebook posts were constitutionally protected speech and that the judge erred in failing to instruct the jury on “true threats.”

In denying the defendant’s motion for a required finding of not guilty, the judge ruled that “there was clear evidence to establish that these were true threats rather than protected speech under the First Amendment,” and, therefore, there was sufficient evidence to allow a jury to determine each element of the stalking statute was met.

Discussion. … We conclude that the statements made by the defendant that were the basis for his convictions were constitutionally protected speech, and therefore could not be the basis for conviction. “[R]emarks about a local public official constituted political speech and were at the core of the speech that the First Amendment to the United States Constitution protects.” …

“Nevertheless, ‘certain well-defined and narrowly limited classes of speech,'” do not receive constitutional protection, including “true threats.” Comparing the definition of a 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.

“‘True threats’ encompass 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 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.'” This class of unprotected speech was developed “to help distinguish between words that literally threaten but have an expressive purpose such as political hyperbole, and words that are intended to place the target of the threat in fear, whether the threat is veiled or explicit.” … “The assessment whether the defendant made a threat is not confined to a technical analysis of the precise words uttered. Rather, the jury may consider the context in which the allegedly threatening statement was made and all of the surrounding circumstances.” …

We compare the present case to two recent decisions by the Supreme Judicial Court. In Walters, the court vacated a stalking conviction stemming from a defendant’s Facebook page for insufficient evidence. The defendant in Walters was convicted of stalking his former girl friend, who had begun dating another man. Immediately following their breakup, the defendant made multiple references about his guns to the victim in veiled apparent threats. The defendant’s conviction was based on his Facebook profile page posted several years after they broke up, which the victim was shown by her boy friend. The defendant’s main profile picture showed him with a large gun across his lap. Elsewhere on his profile page the defendant wrote a quotation: “Make no mistake of my will to succeed in bringing you two idiots to justice.” The Supreme Judicial Court held that the evidence of the defendant’s intent was insufficient because “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.”

The defendant in Commonwealth v. Bigelow was convicted of two counts of criminal harassment after sending five letters to a town selectman and his wife. The letters were sent anonymously and were riddled with personal insults and vulgarities, but the crux of the letters was criticism aimed at the selectman’s ability to perform his job as a public official.

In determining that there was insufficient evidence to support the defendant’s conviction as it related to his actions against the selectman, the Supreme Judicial Court noted that his position as a government official impacted the reach of the defendant’s First Amendment protections. “Because these letters were directed at an elected political official and primarily discuss issues of public concern — [the selectman]’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.”

“Where matters of public concern are the focus — that is, ‘any matter of political, social, or other concern to community’ — the First Amendment protections are often more rigorous than when matters of private significance are at issue.” Accordingly, since “the essence of the conduct was speech, and in particular, constitutionally protected speech,” there was insufficient evidence to support his criminal harassment conviction as it related to the selectman.

Here, we conclude that the judge erred in qualifying the defendant’s Facebook posts as “true threats,” and therefore unprotected speech. True threats include both “direct threats of imminent physical harm” and “words or actions that — taking into account the context in which they arise — cause the victim to fear such [imminent physical] harm now or in the future.” Having reviewed the Facebook postings that were the grounds for the defendant’s convictions and having considered the context of the videos, we conclude that they did not constitute threats of the kinds of unlawful acts of violence that render speech unprotected.

Rather, the defendant’s posts “primarily discuss issues of public concern,” as they are clearly directed at exposing what the defendant considered to be shortcomings in the chief’s and deputy chief’s ability to properly perform their public positions. In accusing the chief and deputy chief of drinking on the job, spending time with known local criminals, and generally being corrupt, the defendant’s videos were obviously attacking their capacity to effectively serve as police officers.

Statements taken individually after being parsed from the videos as a whole — such as the chief’s testimony that he took the defendant’s statement that he was going back to “old school” to mean the defendant was going to physically assault him — are too remote and speculative to support a determination that the speech was unprotected. As such, the judge erred in determining that the defendant’s speech in the videos constituted “true threats.”