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harassers are at the mercy of a hearer's sensitivities.
Moreover, William has offered no meaningful evidence to show
that the statute has a real and substantial deterrent on
protected speech or that it actually denies fair notice of what
conduct is proscribed.
The required elements are clearly
delineated such that § 43A (a) leaves no putative harassers
wondering what is prohibited.
Accordingly, William's facial
challenge to § 43A (a) fails.
2.
As-applied challenge.
The defendants' as-applied
constitutional challenge also fails because the conduct in
question was not protected speech, but rather a hybrid of
conduct and speech integral to the commission of a crime.
Accordingly, § 43A (a), as applied to the defendants, does not
implicate constitutionally protected speech rights.
"[I]t has never been deemed an abridgment of freedom of
speech or press to make a course of conduct illegal merely
because the conduct was in part initiated, evidenced, or carried
out by means of language, either spoken, written, or printed."
United States v. Sayer, 748 F.3d 425, 433 (1st Cir. 2014),
quoting Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502
(1949).
The defendants do not claim that creating fictitious
Internet postings and sending a letter falsely accusing someone
of a crime constitute legal conduct.
Their conduct served
solely to harass the Lyonses by luring numerous strangers and
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