19
Nonetheless, the defendants attempt to argue that they are
entitled to a required finding of not guilty on the criminal
harassment charge because none of their speech constituted
"fighting words," which they contend was the only form of speech
punishable at the time of the offense under our interpretation
of the statute in Welch.
See generally 444 Mass. at 93-100.
This argument is meritless.
While the focus of our decision in
Welch was centered on the "fighting words" doctrine, we
expressly noted that "[a]ny attempt to punish an individual for
speech not encompassed within the 'fighting words' doctrine (or
within any other constitutionally unprotected category of
speech) would of course offend our Federal and State
Constitutions" (emphasis added).
Id. at 99.
These well-defined
and limited categories of speech "are not protected because they
are 'no essential part of any exposition of ideas, and are of
such slight social value as a step to truth' that whatever
meager benefit that may be derived from them is 'clearly
outweighed' by the dangers they pose."
Borowski, 461 Mass. at
422, quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572
hybrid of speech and conduct. There is content within the
communications, but the very act of using the Internet as a
medium through which to communicate implicates conduct. In
Welch, supra at 99 n.15, we did "not suggest that incidents of
harassment that consist of more than pure speech should be
exempted from punishment." Here, the conduct and speech
together "constituted a single and integrated" course of action
in violation of a valid law. See Giboney v. Empire Storage &
Ice Co., 336 U.S. 490, 498 (1949).
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