Call an elected official a drug-using asshole all you want, but leave his spouse out of it, court rules

The Supreme Judicial Court ruled today that obnoxious comments, including invective-laced allegations of criminal wrongdoing and affairs with subordinates, are "protected speech" under the First Amendment when included in letters addressed to an elected official. But put the same comments in a letter to his wife, ask her if she's going to get plastic surgery when she goes into hiding after being run out of town, and you're treading on thin ice.

The ruling comes in the case of Harvey Bigelow of Rehoboth, convicted of harassing Rehoboth Selectman Michael Costello and his wife in a series of five letters in 2011 that addressed the selectman as "the biggest fucking loser I have ever met," a drunken drug user would soon be arrested at town meeting and sent to prison because he's "a fucking asshole" and "not even close to being capable in any way to be a selectman, never mind a floor sweeper."

The court reversed Bigelow's convictions for harassing Costello. But it ordered a new trial for the charges of harassing Susan Costello because of what it said was a critical mistake by the judge in directions to the jury.

Because Bigelow never took physical actions against the Costellos, the court had to weigh the First Amendment against the state harassment law. The court said it was throwing out Bigelow's conviction for going after Costello because the First Amendment protects even coarse speech against elected officials and because it was not convinced Bigelow met all the criteria for criminal harassment under state law.

The judges wrote that only two of the five letters were specifically addressed to Costello - the rest were addressed to his wife or to his wife and him - and state law requires at least three instances of harassment. Also, the "serious alarm" Costello testified he felt - another requirement - was related solely to the fact that the letters made his wife so horrified she couldn't sleep and wanted to move out of town, not to any feelings of being unsafe he had himself.

[W]hen those letters that were arguably "directed at" ... or targeted Michael are considered, their central thrust is criticism of him as a selectman in the town; the personal insults and allegations concerning Michael's alleged criminal past and sexual improprieties appear to be intended to persuade him to resign from his elected position. 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.

His wife, however, is another matter, the court continued. She was not an elected official, held no public role and had a legitimate fear of being harmed in her own home, the court said:

These three letters [addressed to her] contained vulgar and hateful insults and comments that in their choice of language and their repetitive nature were disturbing, reflecting what could be found to be an obsessive interest in private matters relating to Susan -- especially her marital relationship. But more to the point, some 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. ...

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. ...

As part of the contextual analysis, an individual's right "to be let alone" in her home is relevant. ... Not being a public official, Susan's right of
privacy in her home was substantial. ... 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.

The court sent the charge for the letters addressed to Susan Costello back to a lower court for a re-trial however, because they concluded the judge in the initial case - who sentenced Bigelow to a year of probation and ordered him to write an apology letter - did not adequately explain the various facets of the haraassment law and the First Amendment to the jury.