Duo behind fake golf cart ads fight harassment law
Sep. 01, 2014
BOSTON (AP) — Bernadette Lyons came home one day and found 10 strangers milling around her driveway looking for free golf carts.
The next day, her husband, Jim, began getting phone calls late at night from people inquiring about a Harley Davidson motorcycle. The couple also received an anonymous email containing their Social Security numbers and other personal information, along with a message: "Remember, if you aren't miserable, I ain't happy!" The clincher came when child-protection workers knocked on their door and said they were investigating a report that Jim Lyons had physically abused their 13-year-old son.
"It was overwhelming," Bernadette Lyons said. "Every day, we woke up not knowing what was going to happen. We were very scared."
The couple's neighbors in Andover, William and Gail Johnson, were convicted of harassing the Lyonses, helped by a friend who admitted placing fake Craigslist ads and sending the anonymous email at the behest of William Johnson.
The Johnsons are appealing their convictions, arguing that their actions were protected by the First Amendment right to free speech. The Supreme Judicial Court of Massachusetts, the state's highest court, is scheduled to hear arguments in the case Wednesday.
Trouble between the once-friendly neighbors began in 2003, after William Johnson said he wanted to develop land he owned behind the Lyonses' home into a small subdivision. The Lyonses and other neighbors objected, and years of litigation followed.
Jim Lyons, a businessman who owned several flower and ice cream shops, was elected as a state representative in 2010, after the dispute.
In March 2008, a Craigslist ad was placed by Gerald Colton, a friend of the Johnsons who posed as a former campground owner trying to get rid of golf carts. The ad said there were free golf carts in his yard, available on a first-come, first-served basis, and it included the Lyonses' address and home phone number. After that, the Lyonses were the targets of a series of hoaxes.
Witnesses testified that Colton, who later testified against the Johnsons, signed up Jim to donate his body to science, signed him up to join magical, nudist, bisexual and transsexual organizations, and posed as him online while posting comments on websites.
Jim Lyons also received a letter from "Brian," who accused Jim of sexually molesting him when he worked for Jim at his store as a teenager and threatened to press criminal charges.
"What the Johnsons wanted to do was torture us, and they used every means available," Jim Lyons said. "They went after our family; they went after our business."
The Johnsons, however, argue that none of the things the Lyonses were subjected to seriously alarmed them, a requirement under the harassment law. They say their actions amounted to free speech.
"As long as the United States of America has been a country, free speech has been one of our highest priorities," said Robert Sinsheimer, William Johnson's appellate lawyer.
"My client's statements may have been anti-social, they may have been sophomoric, but they did not violate the Constitution. They were not fighting words and they were not threats."
William Johnson served 18 months in jail after he was convicted of criminal harassment and falsely reporting child abuse. Gail Johnson served six months after she was convicted of criminal harassment.
"A speech-based criminal-harassment conviction passes First Amendment muster if it is based on fighting words that target the victim, are capable of inciting an immediate fight, and seriously alarm the victim," Gail Johnson's lawyer, Valerie DePalma, wrote in a legal brief.
DePalma argued that the Lyonses could not immediately retaliate against the creator of the fictitious postings or the anonymous senders of the email and letter. "None of the speech seriously alarmed them," she wrote.
Prosecutors say the case against the Johnsons was properly prosecuted under the criminal harassment law, passed in response to a loophole in the state's stalking law, which state lawmakers said did not protect people who were harassed but not overtly threatened. The law went into effect in 2000.
"The statute is narrowly tailored, intended to address repeated, malicious conduct that causes severe emotional distress to victims," prosecutors argued in a brief filed by Essex District Attorney Jonathan Blodgett. Prosecutors said the Johnsons have not shown that the law deters free speech.