Massachusetts court to hear case on profanity-laced letter

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BOSTON (AP) — Michael Costello knew being a selectman in a small town wouldn’t be a glamorous job, but he never imagined he’d be called a “thug,” ”scumbag,” ”loser” and other, unprintable names in anonymous letters mailed to his home.

Now the highest court in Massachusetts has decided to re-examine the state’s criminal harassment law to determine whether it violates the constitutional right to free speech when applied to criticism of an elected official’s actions or qualifications.

The case centers on Costello, who was first elected to the Board of Selectmen in Rehoboth in 2011. Even before he took office, the letters started arriving at his home, addressed to both him and his wife, Susan.

In addition to being sprinkled with profanity, the letters – five in total – accused Costello of having an extramarital affair, attempting to kill his ex-wife and abusing drugs and alcohol.

“I came home one night, all the lights were shut off and my wife was sitting at the kitchen table crying her eyes out,” Costello recalled.

“She was afraid of what might happen next – would rocks be thrown through our windows, would she be harassed when she’s out by herself or home alone? … It took a big toll on her, and it took a toll on me from what it did to my wife.”

Harvey Bigelow, who was convicted of criminal harassment in the case, denies writing the letters. He believes he was targeted because he had been an outspoken critic of officials in Rehoboth, a sleepy town of about 12,000 located 50 miles south of Boston.

“It was all a setup,” Bigelow, 70, said in a phone interview.

In Bigelow’s appeal, his lawyer, Diana Cowhey McDermott, focuses not on his guilt or innocence but on her argument that the remarks in the letters are free speech protected by the First Amendment.

She argues that the language in the letters was “merely political hyperbole” to express dissatisfaction with Costello’s job performance and did not contain “true threats.” Because Costello is a public figure, the letters are constitutionally protected as free speech, she wrote in a legal brief filed with the court.

“Listening to dissatisfied constituents is part of the job of an elected official. Indeed, Mr. Costello testified that occasionally a letter to the editor would appear in the local paper expressing objections to some of his votes and decisions he made on behalf of the town,” she wrote.

“In the end, the Commonwealth prosecuted the defendant for what the Costellos concluded was hurtful speech.”

Prosecutors say although the letters include criticism of Costello’s role as a selectman, they also included “a large amount of threatening, ominous, and intimidating material” directed at Costello and his wife personally.

In one of the letters, the author asked Susan Costello if her husband used “intimidation tactics” and “strong arm antics” to get Susan to “fall into line.” The author also referenced Jim Jones, the leader of the Jonestown massacre, and asked Susan: “Are you drinking the ‘magic Kool-Aid?'”

During the time period the letters were sent, Bigelow, his son and his son’s girlfriend worked at an auto body shop. Prosecutors said a document found on the shop’s copy machine table was identical to the fifth letter sent to the Costellos.

To be convicted under the state’s criminal harassment law, prosecutors must prove that a defendant “willfully and maliciously” engaged in a knowing pattern of conduct or speech on at least three separate occasions, that the conduct or speech seriously alarmed the victim, and that it would cause a reasonable person to suffer substantial emotional distress.

The Supreme Judicial Court pulled the case up on its own and asked outside groups to submit legal briefs on the question of whether the law is unconstitutional when applied to political speech.

Michael Meltsner, a law professor at Northeastern University, said he believes Bigelow has a strong First Amendment challenge to his conviction.

“You have a First Amendment right to be obnoxious – especially when you are dealing with a matter of public concern – unless you are threatening violence or behaving in a way that will provoke violence immediately,” Meltsner said.

The court is scheduled to hear arguments Jan. 8.

— Written by Denise Lavoie

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