Last month, the Massachusetts Supreme Judicial Court (SJC) held that a Facebook profile may constitute a "threat" within the meaning of the Massachusetts stalking statute. However, a profile that is merely "vaguely ominous or disturbing," as was the case in Commonwealth v. Walters, is insufficient to support a conviction.
Background
In 2006, Michael Walters and his girlfriend bought a house together in Seekonk, Massachusetts, just over the Rhode Island border. In 2007, the couple split up, but kept living in the same house. Walters began a pattern of harassment against his then ex-girlfriend which eventually led to her obtaining a restraining order requiring him to vacate the house, except that he was permitted continued access the construction equipment he stored on the property.
Walters' ex-girlfriend then started dating a Rhode Island police officer identified by the SJC opinion only as "Stephen." Walters escalated the harassment. He parked his construction equipment so that it blocked the driveway, hammered shut shed doors, and removed the outside light bulbs from the house. He also sabotaged a Zillow.com page intended to facilitate the sale of the property, including by uploading a copy of the restraining order affidavit and by posting comments essentially accusing Stephen and the ex-girlfriend of adultery.
In 2008, the restraining order was modified to discontinue Walters' access to the property, and Walters was given a short time to remove only his personal possessions. Instead, Walters removed most of the major appliances, including the refrigerator, stove and bed. While there, he also shut off the water to the whole house and left feces in the toilets. The refrigerator and stove showed up again a month later, dumped in the parking lot of the ex-girlfriend's lawyer. Meanwhile, Walters also filed a number of complaints against Stephen with the Rhode Island authorities.
The Facebook Post
There were no further incidents until 2011, when Stephen and Walters' ex-girlfriend (who had by then married) went online and looked at Walters' Facebook profile. The profile featured a picture of Walters, smiling and holding a gun across his lap. On a separate part of the page was the statement: "Make no mistake of my will to succeed in bringing you two idiots to justice." The page also claimed that Walters served on the "Governors [sic] Task force on Police Corruption" and included images of the singer Rihanna, who the SJC noted was known to be a victim of domestic violence.
Walters was eventually convicted for stalking, criminal harassment, violation of the restraining order and perjury. He was acquitted of other charges, including rape and assault. The stalking conviction was based principally on the Facebook profile.
Stalking Conviction for Implied Facebook Threat Vacated
Walters appealed, and the SJC took the matter in order to consider the definition of a "threat" under the Massachusetts stalking statute, Mass. General Laws, Chapter 265 § 43. A conviction for stalking requires proof of a harassing pattern of conduct and "a threat with the intent to place the person in imminent fear of death or bodily injury." The SJC acknowleged that a Facebook profile or other electronic communication can constitute a "threat" for purposes of the stalking statute, and that a "true threat" (speech not entitled to First Amendment protection) need not be explicit, but can be implied. However a conviction nevertheless requires evidence beyond a reasonable doubt of the defendant's intent to communicate a threat to the victim.
Here, the Court found that nothing in the photograph itself suggested an intent to threaten violence. Even though there was a gun in the image, Walters' possession of that gun violated no law, and he had not been accused of ever using a firearm in a violent or threatening manner. The Commonwealth argued that, taking into account past events, this photograph, in combination with a quotation about "justice," a reference to a famous victim of domestic violence, and the mention of "Police Corruption," could have little meaning except as a threat against the couple. The SJC agreed that the "page as a whole could have come across as vaguely ominous or disurbing." However, any inference of a threat was diminished by the passage of three years between the Facebook profile's creation and the prior incidents. Moreover, the inferences the Commonwealth wished to draw about the meaning of the various elements of the profile were not supported by sufficient evidence, specifically that these were same meanings understood by the alleged victims and intended by Walters. Consequently, the Commonwealth had not met its burden to show the existence of a threat or the reasonableness of the victims' fear.
Walters' stalking conviction was therefore vacated. His other convictions, which were not based on the Facebook profile but on prior incidents, were affirmed.
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