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Criminal Harassment – Where Do You Draw The Line About Free Speech?

By Dhar Law, LLP

A decision was recently reached in an interesting criminal harassment case surrounding politics and freedom of speech. The case of the Commonwealth vs. Harvey J. Bigelow made it all the way to the Massachusetts Supreme Judicial Court.

The case involves a local politician in the town of Rehoboth, Michael Costello, his wife, Susan, and an apparently angry constituent named Harvey J. Bigelow. The big question that made it all the way to the highest court of the state involved the line between criminal harassment and freedom of speech.

Background on the case

Michael was elected as a town selectman in Rehoboth in April of 2011. In the months that followed, both Michael and his wife, Susan, received five anonymous type-written letters delivered to their home addres in two-week intervals. Each letter was addressed to either both of them or specifically to Susan. And all of these letters were sent by a man – Harvey – who would eventually be charged and convicted for criminal harassment.

Strangely, most of the letters were addressed and directed in different manners. The first letter was addressed to the couple, but the salutation and body of the letter directed specifically at Michael. The second letter was addressed to Susan, yet directed to Michael. The third and fourth letters were addressed and directed specifically to Susan. And the fifth and final letter was the most unusual. The envelope was addressed to Susan, but the salutation of the letter was to a “Lorraine”, but also contained a handwritten note to Susan at the top of it.

Each of the five letters contained derogatory information about Michael’s political role as a town selectman and some of them contained more personal attacks directed toward both Michael and Susan.

Michael brought the letters to the police and an investigation began. On November 18, 2011, Harvey was charged with a two-count complaint of criminal harassment. One count named Michael and the other named Susan as the person the alleged harassment was directed toward.

Harvey’s defense lawyer filed a motion to dismiss the case, which was denied by a District Court judge. He was found guilty on both counts in August of 2013 and sentenced to a year of supervised probation with the conditions to stay away from Susan and write a public letter of apology to the Costello’s for his actions. The defendant filed an appeal and so began this case’s journey to the Massachusetts Supreme Judicial Court.

The argument for appeal

While Harvey was found guilty of criminal harassment during the first trial, his attorney argued that a charge of criminal harassment only punishes constitutionally unprotected speech. He claimed that his letters were protected under the First Amendment of the Constitution because they qualified as protected free political speech.

Harvey argued that because Michael was an elected official, letters criticizing him as such were protected speech and not subject to criminal punishment. He also alleged that because Susan was married to Michael, even though she holds no public office, the derogatory letters directed at her were also protected under the First Amendment.

The court’s decision

Ultimately, the court decided to reverse the conviction of criminal harassment against Michael and the count of complaint be dismissed. The court agreed that the letters contained protected political speech. They also found there was insufficient evidence that Michael was emotionally distressed by receiving these letters. He recognized that his political position opened him up to some criticism. Although though he did experience some emotional distress due to his wife’s experience, it did not rise to the level of criminal harassment.

And the second count directed toward the politician’s wife?

With regard to the second count involving Susan, the court vacated the conviction and set aside the verdict. The court determined that the letters directed at Susan could qualify as true threats. However, this does not mean that the defendant is guilty of criminal harassment. Since the issue is whether or not Harvey’s speech was constitutionally protected and the jury in the original case was not instructed that the complaint was based on incidents of pure speech, the verdict was vacated.

The case will return to the District Court now for a new trial.


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