18
of § 43A (a).10
The defendants point to no lawful purpose of
their "communications" that would take them outside of the
exception delineated in Giboney.
To the extent that any of the
harassing contacts were composed of words, they were used "so
close in time and purpose to a substantive evil as to become
part of the ultimate crime itself."
United States v. Freeman,
761 F.2d 549, 552 (9th Cir. 1985), cert. denied, 476 U.S. 1120
(1986).
In such instances, "where speech becomes an integral
part of the crime, a First Amendment defense is foreclosed."
Id.
While the content of the speech in question certainly
affected the Lyonses, much of the alarming impact was the
product of the frightening number, frequency, and type of
harassing contacts with which the defendants bombarded the
Lyonses.
In these circumstances, the application of § 43A (a)
to the defendants fully withstands constitutional scrutiny.11
10
The Commonwealth also argues that the speech here is
"speech that unjustifiably invades privacy." We agree with the
defendants, however, that there is no criminal invasion of
privacy statute in Massachusetts. This ultimately proves
irrelevant given our holding that the speech at issue falls
under another category of speech not subject to First Amendment
protection.
11
We disagree with the defendants' contention that their
conviction for criminal harassment rests solely on incidents of
pure speech. In Commonwealth v. Welch, 444 Mass. 80, 86-87
(2005), we noted that courts have long recognized that speech
and conduct "frequently overlap and may be incapable of precise
differentiation" and that "the criminal harassment statute was
intended to proscribe harassing conduct encompassing 'speech.'"
It is apparent that cyberharassment will consistently involve a
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