Thu. Apr 18th, 2024

Insulting letters to politician’s home are constitutionally protected, unless they are ‘true threats’


So the Massachusetts Supreme Judicial Court held Tuesday in Commonwealth v. Bigelow (some paragraph breaks added):

It is true that the letters were sent to Michael [Costello] 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 (1970). 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.”
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 v. California (1971). See State v. Drahota (Neb. 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 (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 (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 (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 Commonwealth v. Johnson (2014), 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…. [I]n Johnson, … the defendants used their speech intentionally to initiate and carry out a plan of harassment of the victims through the conduct of (many) third parties. 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….
The defendant’s speech directed at Susan [Costello] 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 political speech does not mean that it therefore automatically qualifies as constitutionally unprotected speech. Given this court’s interpretation of § 43A [the Massachusetts criminal harassment statute] 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….
True threats represent a category of unprotected speech that our cases have noted is relevant to criminal harassment as defined and proscribed by § 43A…. [V]iewed 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…
[S]ome 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…. 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….
[T]he 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 true threat — and therefore was constitutionally unprotected speech — created a substantial risk of a miscarriage of justice. 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.
Three of the seven justices dissented, arguing that the letters to Susan Costello weren’t properly seen as true threats, though they also would have concluded that some protected speech that doesn’t qualify as true threats may nonetheless be punished by the stalking ban, because the requirement of the criminal harassment statute that speech be “directed at” one victim, on at least three occasions, 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.



U.S. Supreme Court

  • Miller v. US, 230 F 486 at 489 The claim and exercise of a Constitutional right cannot be converted into a crime.
  • Norton v. Shelby County, 118 US 178 (1886) An unconstitutional “law ” is not a law; it confers no rights, imposes no duties, and affords no protection.
  • Chief Justice John Marshall Marbury v. Madison, 5 US (1Cranch) 137, 174, 176 (1803) All laws which are repugnant to the Constitution are null and void. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), was a landmark U.S. Supreme Court case that established the principle of judicial review in the United States, meaning that American courts have the power to strike down laws and statutes that they find to violate the Constitution of the United States
  • State v. Sutton, 63 Min 147, 65 NW 262, 30 LRA630, AM ST 459 When any court violates the clean and unambiguous language of the Constitution, a fraud is perpetuated, and no one is bound to obey it.
  • Norton vs. Shelby County, 118 US 425 p. 442. “An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed.”
  • Bell v. Hood, 71 F.Supp., 813, 816 (1947) U.S.D.C. — So. Dist. CA. History is clear that the first ten amendments to the Constitution were adopted to secure certain common law rights of the people, against invasion by the Federal Government.”
  • SIMMONS v US, supra. “We find it intolerable that one constitutional right should have to be surrendered in order to assert another”
  • Sable Communications of California v. Federal Communications Commission (1989)
    When Congress acted to restrict this growing industry, Sable Communications filed suit in federal district court seeking an injunction against enforcement of the obscene and indecent portions of Section 223(b). The district court denied the injunction, upheld the obscenity portion, and struck down the indecency section of Section 223(b).
  • United States Supreme Court Rosenfeld v. New Jersey (1972) it is well understood that the right of free speech is not absolute at all times and under all circumstances. overly broad and violative of the First Amendment” State v. Rosenfeld 62 N.J. 594 (1973) 303 A.2d 889
  • Miranda vs Arizona, 384 U.S. 436 p. 491 “Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.”
  • Cohen v. California (1971) 403 U.S. 15 (1971),  The Supreme Court established that the government generally cannot criminalize the display of profane words in public places. The     Court rejected a fighting words application to a young man who wore a leather jacket with the words “fuck the draft” on it in a public courthouse.
     Held: Absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments,
     make the simple public display of this single four-letter expletive a criminal offense. 
     Pp. 403 U. S. 22-26. Cohen v. California, 403 U.S. 15 (1971)1 Cal. App. 3d 9481 Cal. Rptr. 503, reversed.

    HARLAN, J., delivered the opinion of the Court, in which DOUGLAS, BRENNAN, STEWART, and MARSHALL, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which BURGER, C.J., and BLACK, J., joined, and in which WHITE, J., joined in part, post, p. 403 U. S. 27.

  • People v. Boomer (Mich. Ct. App.) (2002) “Allowing a prosecution where one utters ‘insulting’ language could possibly subject a vast percentage of the populace to a misdemeanor conviction,”
  • A.V v St Paul 1992 Justices ruled as unconstitutional a St. Paul ordinance classifying as hate speechwords “that insult, or provoke violence, ‘on the basis of race, color, creed, religion or gender.’ ”
  • Karlan v. City of Cincinnati (1974) Police officers should not be considered “fighting words,” because police officers are trained to exercise a higher degree of constraint than the average citizen.
  • Reno v. American Civil Liberties Union (1997)
    speech on the Internetis entitled to the same high degree of First Amendment protection extended to the print media as opposed to the reduced level given the broadcast media.
  • Bible Believers v. Wayne County (6th Cir.) (2015)
    The case stands for the principle that the First Amendment protects unpopular speech and that government officials should not sanction a heckler’s veto.
  • Albert Krantz v. City of Fort Smith
    A 1998 decision by the Eighth Circuit Court of Appeals concerning the distribution and posting of flyers and leaflets. In this ruling informed by the First Amendment’s protection of freedom of expression.
  • Lucas v. Arkansas (1974)416 U.S. 919 (1974)
    The single-sentence Supreme Court decision in Lucas v. Arkansas, 416 U.S. 919 (1974), vacated and remanded this case, along with Kelly v. Ohio, Rosen v. California, and Karlan v. City of Cincinnati, to a state court for further consideration in light of the Court’s opinion in Lewis v. City of New Orleans (1974). Court remanded convictions after saying ordinance prohibiting fighting words violated First Amendment
  • Uzuegbunam v. Preczewski (2021) authorities asked him to stop on the basis that others had complained and that the college prohibited any such speech that “disturbs the peace and/or comfort of person(s).”
  • Lewis v. City of New Orleans (1974)  The U.S. Supreme Court in 1974 overturned a woman’s conviction for cursing at police. Lewis had overturned a New Orleans ordinance on the basis that it violated the First and Fourteenth Amendments by being overbroad in its attempt to prohibit vulgar and offensive speech and “fighting words,” as recognized in Chaplinsky v. New Hampshire (1942) and Gooding v. Wilson (1972).
  • City of Houston v. Hill (1987)  In City of Houston v. Hill, 482 U.S. 451 (1987), the Supreme Court found a city ordinance prohibiting verbal abuse of police officers to be unconstitutionally overbroad and a criminalization of protected speech.

  • STATE of Nebraska, appellee, v. Darren J. DRAHOTA Darren Drahota sent a couple of anonymous insulting emails to William Avery, Drahota’s former political science professor, who was running for the Nebraska Legislature at the time. (Avery was eventually elected and served two terms.) Drahota was convicted of disturbing the peace for sending those emails, but the conviction was reversed in 2010 by the Nebraska Supreme Court. (I have a soft spot in my heart for this case, because it was the first First Amendment case I ever argued in court.)
  • STATE of Iowa, Appellee, v. William James FRATZKE, Appellant  William Fratzke was convicted of harassment “because he wrote a nasty letter to a state highway patrolman to protest a speeding ticket.” The Iowa Supreme Court (1989) reversed, on First Amendment grounds.
  • State of Wisconsin v. Thomas G. Smith Thomas Smith was convicted of disorderly conduct and “unlawful use of a computerized communication system” for leaving two vulgar, insulting comments on a police department’s Facebook page. A one-judge Wisconsin Court of Appeals decision (2014) reversed. (Note that such insults aren’t unprotected “fighting words” because they aren’t face-to-face and thus aren’t likely to lead to an immediate fight.)
  • Commonwealth v. Bigelow – Harvey Bigelow sent two letters to Michael Costello, an elected town council member; both were insulting, and one was vulgar. Bigelow was convicted of criminal harassment, but the Massachusetts high court (2016) reversed: “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.” And this was true even though the letters were sent to him at home.  the case law link was above, but you can actually read the newspaper article of his exact doings here
  • People v. Powers, (2011) 193 Cal.App.4th 158,166. (“We conclude that the recordings appellant left on the customer service line cannot constitute substantial evidence that appellant violated section 653m, subdivision (a) [California’s annoying phone calls law]. The messages are annoying rants concerning customer service. It is reasonable for someone to be annoyed by appellant’s language. But the vulgarities uttered cannot be described as obscene, especially in the context of a customer service line maintained to take complaints. Except in extreme cases, we doubt that a person whose job it is to receive consumer complaints has a right to privacy against unwanted intrusion.”) THE PEOPLE,  v. DAVID THOMAS POWERS  determined although they may be a little annoying they were NOT ILLEGAL!
  • Ion Popa left seven messages containing racist insults on the answering machine of the head federal prosecutor in D.C. — Eric Holder, who eventually became attorney general. He was convicted of telephone harassment, which banned all anonymous calls made “with intent to annoy, abuse, threaten, or harass.”
    But the D.C. Circuit (1989) expressly held that the First Amendment prevented the statute from applying to “public or political discourse,”
     such as condemnation of political officials (even left expressly for that official).



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At issue in Rosenfeld v. New Jersey (1972) was whether a conviction under state law prohibiting profane language in a public place violated a man's First Amendment's protection of free speech. The Supreme Court vacated the man's conviction and remanded the case for reconsideration in light of its recent rulings about fighting words. The man had used profane language at a public school board meeting. (Illustration via Pixabay, public domain) Epic Parents SCOTUS Ruling Parental Rights Help Click Here