Jessie Rossman

In a case involving alleged threats on Facebook, the Massachusetts Supreme Judicial Court today applied longstanding constitutional protections to the digital age. Our staff attorney Jessie Rossman had this to say:

We applaud the Supreme Judicial Court’s decision in Commonwealth v. Walters, which preserves First Amendment protections in the face of changing technology.

The amicus brief that we submitted together with Ropes & Gray argued that online speech must get as much protection as offline speech. Only serious threats of unlawful violence can be punished by law, and the prosecution must prove beyond a reasonable doubt that the defendant intended that threat to reach the alleged victim. After all, a Facebook post can reach nearly any Facebook user—or almost no one at all—so the fact that something is posted to Facebook does not itself prove the speaker’s intent to threaten someone. Accordingly, we argued that for an online post to constitute a true threat, it must meet the traditional constitutional standard and must have been intended to reach the person who was allegedly threatened.

Today, the SJC confirmed that this argument is correct. It held that there was insufficient evidence to satisfy the First Amendment’s strict standard for unlawful threats and concluded that a criminal prosecution for stalking requires evidence of the defendant’s intent to communicate the threat through direct or indirect means. This holding will help to ensure that constitutionally protected speech will not land people in jail.

Jessie Rossman is a staff attorney at the ACLU of Massachusetts.

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