Petition for Writ of Certiorari — Daniel Kim, Petitioner v. Massachusetts

Supreme Court briefApr 5, 2023

Ask Donna

What actually matters in this document.

Text

No. __________

In The

Supreme Court Of The United States

____________________________________________

DANIEL KIM,

Petitioner,

COMMONWEALTH OF MASSACHUSETTS

Respondent.

____________________________________________

On Petition For Writ Of Certiorari

To The Massachusetts Appeals Court

____________________________________________

PETITION FOR A WRIT OF CERTIORARI

____________________________________________

Brad P. Bennion

Counsel of Record

P.O. Box 890118

East Weymouth, Massachusetts 02189

(617) 943-6164

bradpbennion@gmail.com

April 2023

QUESTIONS PRESENTED

1. Whether a state court is prohibited from unilaterally determining

whether a defendant’s written speech on his blog is protected or

criminal, without having to submit that issue/defense to the jury.

2. Whether a state court must instruct a jury on the federal definitions

of fighting words and true threats as well all federal standards for

determining whether speech is criminal or protected when a

defendant raises the First Amendment as a defense.

Table Of Contents

QUESTION PRESENTED ........................................................................i

TABLE OF CONTENTS ..........................................................................ii

TABLE OF AUTHORITIES ....................................................................iv

A. CASE CITATIONS ..................................................................iv

B. OTHER AUTHORITIES .......................................................viii

OPINION BELOW ....................................................................................1

JURISDICTION ........................................................................................1

CONSTITUTIONAL PROVISION INVOLVED ......................................1

STATEMENT OF THE CASE ..................................................................2

A. INTRODUCTION .....................................................................2

B. PROCEDURAL HISTORY .......................................................4

C. STATEMENT OF FACTS ........................................................5

REASONS FOR GRANTING THE WRIT .....................................................15

A State Court Is Prohibited From Unilaterally

Determining Whether A Defendant’s Written

Speech On His Blog Is Protected Or Criminal,

Without Having To

Submit That Issue/Defense To The Jury .....................................15

II.

A State Court Must Instruct A Jury On The Federal

Definitions Of Fighting Words And True Threats As

Well All Federal Standards For Determining

Whether Speech Is Criminal Or Protected When

A Defendant

Raises The First Amendment As A Defense ...............................32

CONCLUSION .....................................................................................................36

APPENDIX

1. Denial of Petition for Further Appellate Review ........................App. 4

2. Memorandum And Order Pursuant To Rule 23.0 .......................App. 5

3. Docket (No. 1482CR00816) .........................................................App. 16

4. Indictment (NOCR14-0816) .......................................................App. 35

5. Motion for Bill of Particulars .....................................................App. 43

6. Comm.’s First Bill of Particulars ...............................................App. 45

7. Motion To Dismiss & Memo. ......................................................App. 48

8. Comm.’s Opposition to Motion to Dismiss ................................App. 66

9. Decision & Order on Motion to Dismiss ....................................App. 85

10. Pro Se Motion to Dismiss (Docket No. 38) ...............................App. 88

11. Comm.’s Amended Bill of Particulars .....................................App. 89

12. Pro Se Motion to Dismiss (Docket No. 60) ..............................App. 93

13. Pro Se Motion to Dismiss (Docket No. 65) ..............................App. 95

14. Motion to Dismiss/Rule 36 In Limine Motion .........................App. 97

15. Comm.’s Opposition Motion to Dismiss/Rule 36 …………….App. 102

16. Motion for Required Finding ..................................................App. 107

17. Renewed Motion for Required Finding .................................App. 119

18. Jury Verdict Slips ..................................................................App. 120

19. Motion for Required Finding After Verdict ..........................App. 128

20. Notice of Appeal .....................................................................App. 130

21. Selected Parts of Exh. 3 (Blog Posts) ....................................App. 131

Aug. 1, 2014 (“Honoring XXXXX”) .........................App. 131

Nov. 19, 2012 (“My Gift To XXX XXXX) ................App. 135

Aug. 15, 2014 (“One Last Chance”) ........................App. 147

Jan. 12, 2012 (“Ellie RIP”) ..................................... App. 153

22.

Exh. ID M (Blog Excerpt) ..................................................App. 157

Aug. 8, 2013 (“Stand Up For Yourself”)..................App. 157

23.

Exhibit 2 (Harassment Prevention Order) .......................App. 161

iii

Table of Authorities

Case Citations

Apodaca v. Oregon,

406 U.S. 404 (1972) ..................................................................................43

Bacon v. Boston Elevated Ry. Co.,

256 Mass. 30, 152 N.E. 35 (1926) ...........................................................33

Blakely v. Washington,

542 U.S. 296 (2004) ..................................................................................16

Brandenburg v. Ohio,

395 U.S. 444 (1969) ..................................................................................18

Brown v. Louisiana,

447 U.S. 323 (1980) ..................................................................................32

Byrnes v. City of Manchester, NH,

848 F.Supp.2d 146 (D. New Hampshire 2012) .......................................24

Chaplinsky v. New Hampshire,

315 U.S. 568 (1942) ............................................................................18, 26

Chapman v. California,

386 U.S. 18 (1967) ...................................................................................33

Commonwealth v. Bigelow,

475 Mass. 554, 59 N.E.3d 1105 (2016) ............................................. 29, 33

Commonwealth v. Brennan,

481 Mass. 146, 112 N.E.3d 1180 (2018) .................................................35

Commonwealth v. Gordon,

44 Mass. App. Ct. 233, 694 N.E.2d 2 (1998) ...........................................22

Commonwealth v. Kim,

491 Mass. 1103, 201 N.E.3d 709 (2022) ....................................................1

Commonwealth v. Kim,

101 Mass. App. Ct. 1124, 199 N.E.3d 887 (2022) .....................................1

Commonwealth v. McCarthy,

385 Mass. 160, 430 N.E.2d 1195 (1982) .................................................21

Commonwealth v. Walters,

472 Mass. 680, 37 N.E.3d 980 (2015) ......................................................23

Commonwealth v. Welch,

444 Mass. 80, 825 N.E.2d 1005 (2005) ....................................................23

Conde v. Henry,

198 F.3d 734 (9th Cir. 2000) ....................................................................34

Connick v. Meyers,

461 U.S. 138 (1983) ..................................................................................29

Crane v. Kentucky,

476 U.S. 683 (1986) ..................................................................................34

Duncan v. Louisiana,

391 U.S. 145 (1968) ..................................................................................16

Gitlow v. New York,

268 U.S. 652 (1925) ..................................................................................17

Holmes v. South Carolina,

547 U.S. 319 (2006) ..................................................................................34

Iancu v. Brunetti,

___ U.S. ___, 139 S.Ct. 2294 (2019) .........................................................17

Johnson Chemical Co. v. Condado Center, Inc.,

453 F.2d 1044 (1st Cir. 1972) ..................................................................30

Jones v. Taibbi,

400 Mass. 786, 512 N.E.2d 260 (1987) ....................................................29

Neder v. U.S.,

527 U.S. 1 (1999) ................................................................................16, 34

Nolan v. Krajcik,

384 F.Supp.2d 447 (D. Massachusetts 2005) .........................................24

O’Brien v. Borowski,

461 Mass. 415, 961 N.E.2d 547 (2012) ..............................................23, 35

Ornelas v. U.S.,

517 U.S. 690 (1996) ..................................................................................19

Rankin v. McPherson,

483 U.S. 378 (1987) ..................................................................................29

Seney v. Morhy,

467 Mass. 58, 3 N.E.3d 577 (2014) ..........................................................23

Silva v. Norfolk & Dedham Mutual Fire Insurance Co.,

91 Mass. App. Ct. 413, 75 N.E.3d 1132 (2017) .......................................24

Snyder v. Phelps,

562 U.S. 443 (2011) ..................................................................................17

Sullivan v. Louisiana,

508 U.S. 275 (1993) ..................................................................................33

Taylor v. Illinois,

484 U.S. 400 (1988) ..................................................................................17

Tropeano v. Atlantic Monthly Co.,

379 Mass. 745, 400 N.E.2d 847 (1980) ....................................................29

U.S. v. Ackell,

907 F.3d 67 (1st Cir. 2018) ........................................................................18

U.S. v. Alkhabaz,

104 F.3d 1492 (6th Cir. 1997) .................................................................33

U.S. v. Cassidy,

814 F. Supp. 2d 574 (D. Maryland 2011) ....................................17, 27, 31

U.S. v. Clemens,

738 F.3d 1 (1st Cir. 2013) ........................................................................33

U.S. v. Fulmer,

108 F.3d 1486 (1st Cir. 1997) ..................................................................24

U.S. v. Malik,

16 F.3d 45 (2nd Cir. 1994) .......................................................................33

U.S. v. Miguel,

338 F.3d 995 (9th Cir. 2003) ....................................................................34

U.S. v. Parr,

545 F.3d 491 (7th Cir. 2008) ....................................................................33

U.S. v. Read,

918 F.3d 712 (9th Cir. 2019) ....................................................................35

U.S. v. Stock,

728 F.3d 287 (3rd Cir. 2013) ....................................................................33

U.S. v. Whiffen,

121 F.3d 18 (1st Cir. 1997) ......................................................................24

U.S. v. White,

670 F.3d 498 (4th Cir. 2012) ....................................................................33

Van Liew v. Stansfield,

474 Mass. 31, 47 N.E.3d 411 (2016) ........................................................23

Virginia v. Black,

538 U.S. 343 (2003) ..................................................................................26

Weaver v. Massachusetts,

___ U.S. ___, 137 S.Ct. 1899 (2017) ........................................................16

White v. Blue Cross and Blue Shield of Mass., Inc.,

442 Mass. 64, 809 N.E.2d 1034 (2004) ...................................................28

Williams v. Florida,

399 U.S. 78 (1970) ....................................................................................32

Other Authorities

U.S. Const., Amend, 1st ....................................................................passim

U.S. Const., Amend, 6th ...........................................................1, 16, 17, 30

U.S. Const., Amend, 14th ...............................................................2, 16, 26

Mass. Const., Pt. 1st, Art. 12 ............................................................16, 17

28 U.S.C. 1257 ...........................................................................................1

G.L. c. 258E, § 9 ..................................................................................4, 22

vii

G.L. c. 265, § 13H .......................................................................................4

G.L. c. 265, § 43 ....................................................................................4, 21

G.L. c. 265, § 43A ..................................................................................4, 22

G.L. c. 268, § 13B ..................................................................................4, 22

D. Brock Hornby, 2009 Revisions to Pattern

Criminal Jury Instructions for the District

Courts of the First Circuit § 4.18.875 (2009) .........................................24

Benjamin Means, Criminal Speech and the First

Amendment, 86 Marquette Law Review, 501 (2002) ............................18

viii

OPINION BELOW

The memorandum and order of the Massachusetts Appeals Court

is reported at 101 Mass. App. Ct. 1124, 199 N.E.3d 887 (2022), and is

reproduced in the Appendix.1 [App. 5]. The order of the Massachusetts

Supreme Judicial Court denying the petitioner’s request for further

appellate review is reported at 491 Mass. 1103, 201 N.E.3d 709, and is

reproduced in the Appendix. [App. 4].

STATEMENT OF JURISDICTION

The order of the Massachusetts Supreme Judicial Court affirming

the petitioner’s conviction and the denial of his petition for further

appellate review entered on January 13, 2023. The petitioner seeks

review of a judgment by the highest State court in which a decision could

be had and invokes this Court’s jurisdiction under 28 U.S.C. 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

The First Amendment to the United States Constitution, Free

Speech Clause provides: “Congress shall make no law ... abridging the

freedom of speech ....”

The Sixth Amendment to the United States Constitution

provides: “In all criminal prosecutions, the accused shall enjoy the right

1 Citations to the appendix will be referred to by “App.” followed by the

page number. Citations to the trial transcripts will be referred to by

volume number, or date of a pretrial hearing, followed by the page

number.

to a speedy and public trial, by an impartial jury of the state and district

wherein the crime shall have been committed, which district shall have

been previously ascertained by law, and to be informed of the nature and

cause of the accusation; to be confronted with the witnesses against him;

to have compulsory process for obtaining witnesses in his favor, and to

have the assistance of counsel for his defense.”

The Fourteenth Amendment to the United States Constitution,

Section 1, provides: “No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty, or property, without

due process of law; nor deny to any person within its jurisdiction the

equal protection of the laws.”

STATEMENT OF THE CASE

INTRODUCTION

The issues raised are paramount matters for this Court to resolve.

The facts of this case are straightforward; the defendant made

disparaging written remarks against the complainant, a family friend

on his online blog. The Commonwealth of Massachusetts indicted him

in significant part, on his online written speech. Trial counsel asked the

court in a pre-trial motion to dismiss the indictments premised on his

online speech claiming the First Amendment protected the disfavored

speech. The motion court denied the motion without discussing the First

Amendment defense. The trial judge took up the First Amendment issue

after the Commonwealth had presented its case. The prosecutor argued

the speech was not protected and that the motion judge had already

decided the constitutional issue. Defense counsel requested a jury

instruction as to the First Amendment defense. This exchange then

brought to the court the issue whether the First Amendment question

“is an issue for a jury or is this simply a question of law for the Court.”

The trial judge determined “that the Court can rule on that [whether

specific speech is protected or not] as a question of law,” holding that the

defense isn’t necessarily “entitled to a jury instruction on it [the First

Amendment].” [Tr. 6, 108-09]. Defense counsel argued that it was the

right of the jury to decide the free speech issue.

The trial judge then ruled that the jury had no place making a

determination of the free speech issue, stating that “if it’s protected

speech as a matter of law that [the motion judge] should have allowed

the [dismissal] motion and [the trial court] should have allowed your

motion [for required finding of not guilty].” [Tr. 7, 14]. The trial judge

prohibited defense counsel from raising the First Amendment/protected

speech defense in his closing argument before the jury, and the trial

court did not accordingly instruct the jury on the elements of protected

speech or the First Amendment. Meaning, the Commonwealth easily

obtained its convictions.

PROCEDURAL HISTORY

On September 30, 2014, a Norfolk County grand jury returned

indictments against the defendant, Daniel Kim, for violating G.L. c. 265,

§ 43(a) (Stalking), c. 265, § 13H (Indecent A&B On Person 14 Or Over),

c. 268, § 13B (Witness Intimidation), c. 265, § 43A(a) (Criminal

Harassment), and four counts of violating c. 258E, § 9 (Violating a

Harassment Prevention Order) (1482CR00816). [App. 17-18, 20, 35-42].

The defendant pled not guilty to the charges on October 17, 2014. [App.

20].

The defense filed a motion to dismiss on July 22, 2016, and the

Commonwealth filed it opposition on August 17th. [App. 23, 48, 66]. The

matter was taken up by Judge Cannone at a hearing on August 18, 2016.

The court denied the motion in a brief memorandum of law issued on

September 9, 2016. [App. 23, 85].

Trial commenced before Judge Cosgrove and a jury on May 15,

2018. [App. 20, 28]. At the conclusion of the Commonwealth’s case, and

again at the close of all the evidence the defense moved for a required

finding of not guilty, which the court denied. [App. 29, 107-119]. On May

23, 2018, the jury returned a verdict of guilty on all counts. [App. 30,

120-27]. The defense then filed a motion for a required finding of not

guilty after the verdict, which was again denied. [App. 31, 128].

Judge Cosgrove sentenced the defendant on Count 1 (Stalking) to

a 4 to 5 year prison sentence. On Count 2 (Indecent A&B), the sentence

given was a 3 to 5 year prison term, to be served consecutively with

Count 1, with a credit of 287 days. As to Count 3 (Witness Intimidation),

the Court sentenced the defendant to 20 years probation, with

conditions and where the defendant was incarcerated, the probation

would be unsupervised and supervised upon release. On the remaining

counts, Count 4 (criminal harassment), and Counts 5-8 (violation of

harassment prevention order), the Court sentenced the defendant to 20

years probation, with conditions, concurrent with Count 3, again

unsupervised while incarcerated and supervised upon release. [App. 3132]. The defendant filed a timely Notice of Appeal on June 13, 2018.

[App. 33, 130]. On November 10, 2022, the Appeals Court affirmed the

defendant’s conviction in an unpublished opinion. [App. 5-15]. The

defendant sought further appellate review of the decision rendered by

the Appeals Court from the Massachusetts Supreme Judicial Court.

That petition was denied on January 12, 2023. [App. 5].

FACTS PRESENTED AT TRIAL

LK,2 the victim in this case came to know the defendant, Daniel

Kim when her parents bought a printing business from the defendant’s

In accordance with Massachusetts court practice, a pseudonym

consistent with the indictments has been used for the complainant.

parents in Brookline, MA. [Tr. 3, 58]. John and Susan Kelley bought the

business from Dae Sik Kim in 1985. [Tr. 3, 55-56, 59-60; 5, 85]. At this

time the defendant was 40 years of age and LK was 16. [Tr. 3, 58; 5, 87].

The two families became friendly with one another. [Tr. 3, 60]. The

defendant maintained friendly relationship with the Kelley’s and

because the Kim family initially lived behind the Kelley’s business, the

defendant would perform odd jobs like helping set up computer systems.

[Tr. 3, 60, 62-64; 5, 88-90]. As the years progressed the defendant

continued visit the Kelley’s. For example, it was not unusual for the

defendant to leave work and go to the Kelley’s for dinner. [Tr. 5, 91]. In

1999 the Kelley’s moved the business to Canton. [Tr. 3, 64; 5, 89]. Even

after the move the defendant continued to visit the business as a friend,

and would help out with whatever was needed as far as networking or

computer problems. [Tr. 3, 64; 5, 90].

The Kelley’s didn’t keep specific details on the defendant

whereabouts but recalled that he moved to Virginia at one point for a

period of time and they lost contact for a while when he was out of state.

[Tr. 3, 64-65]. Around this time the defendant married, and the Kelley’s

attended the wedding in Virginia. [Tr. 3, 65]. Mr. Kim’s wife passed

away sometime thereafter. [Tr. 3, 121].

When LK was in high school, she would often assist her parents

at their Canton business beginning around 2006. [Tr. 3, 66-67]. Around

this same time period the defendant returned to Massachusetts and

continued, on occasion (a couple times a year) assisting the Kelley’s at

the business. [Tr. 3, 67; 4, 18-19]. As before, the defendant would

regularly visit the Kelley’s home in Avon, specifically to seek out LK.

[Tr. 3, 68; 5, 92]. He would also help out around the house with

household projects, for example he offered to repair the family’s faulty

clothes dryer or work on fixing problems with the TV and the WiFi. [Tr.

3, 68; 5, 91]. He would often be at the Kelley’s home for hours. [Tr. 5,

92]. During the years that LK was in high school, the defendant would

also visit the Kelley’s home on Cape Cod, again to visit the family or to

assist with needed household projects, like to set up a security camera

system for that house. [Tr. 3, 69]. At this time Mr. Kelly thought that

the association between the defendant and LK was a “respectful,”

adult/child relationship and/or a “friendship.” [Tr. 3, 69-70]. During this

time period both parents testified there was nothing unusual about his

interactions with their daughter; no red flags that came up in that time.

[Tr. 3, 70; 5, 92].

LK herself testified that growing up she didn’t really know the

defendant, she just kind of knew of him. [Tr. 4, 18]. When she got a bit

older and entered high school, LK began assisting in the Canton

business, and she would see him “sporadically.” [Tr. 4, 18].

During her high school years, LK would also see the defendant

outside of work when he occasionally made the effort to be involved in

the family’s activities. [Tr. 4, 19]. LK described it as he would “sort of

show up uninvited.” [Tr. 4, 19]. She characterized her interactions with

the defendant during her high school years as “polite and like just trying

to keep her distance without jeopardizing her parents’ working

relationship.” [Tr. 4, 20]. She testified that she kept a distance from him

because he made her extremely uncomfortable, calling him “creepy”

since he would look at her, or make inappropriate comments, or touch

her, which to her seemed inappropriate. [Tr. 4, 20-22]. But when she

needed someone to help her fulfill her required driver’s education hours,

she did allow the defendant to drive with her. [Tr. 3, 121-22; 4, 20-21].

Mrs. Kelly testified that in April of 2010, on her daughter’s

birthday, the defendant showed up at their business. [Tr. 5, 93]. Without

being invited, the defendant showed up at the restaurant where the

family was celebrating and was described as very happy to be there and

he sat right next to LK. [Tr. 4, 22-23; 5, 94].

LK began college in the fall of 2010 and lived in a dorm on

campus. [Tr. 3, 70; 4, 24; 5, 94-95]. After each academic year that

followed, LK bounced between the family homes in Avon and the Cape,

and worked over the summer. [Tr. 3, 70-71; 4, 24-26; 5, 95]. The summer

following her freshman year, during the summer of 2011, the defendant

went to the Kelley’s home on the Cape. [Tr. 3, 71-72]. The defendant’s

sister also had a place on Cape Cod and sometimes he would stop by the

Kelley’s home on his way to or from his sister’s home. [Tr. 3, 72]. When

the defendant would visit the Kelley’s home on the Cape, he would often

bring an ice coffee for LK. [Tr. 5, 97].

During the summer of 2011, between her freshman and

sophomore years, LK testified that she encountered the defendant when

he did I.T. work for her parents at their business or when he did

household improvement projects at either the Avon or Cape homes. [Tr.

4, 26]. She characterized the defendant’s “aggressive” behavior toward

her that summer as “distressing and overwhelming,” and that it made

her feel “uncomfortable.” [Tr. 4, 26]. For example, when the defendant

was fixing the family clothes dryer at their Avon home, she had worked

late into the evening as a waitress, and the defendant would sometimes

wake her up in the morning by going into her room and poke her or hold

something cold (like an ice coffee) up against her to “startle” her awake.

[Tr. 4, 27-28]. She also testified that he would follow her around the

house regardless of what she was trying to do. [Tr. 4, 29]. He would just

“sort of bother” her and he “would just chatter constantly about

anything.” [Tr. 4, 29]. LK tried to avoid the defendant, and also

described that the defendant would engage in what he termed a “tickle

fight” where he would “sort of pounce” on and “attack” her and try to

tickle her. She would respond by trying to “push him away” because she

didn’t like that. [Tr. 4, 29-30]. He would also “spank” as a jest but that

action “was never taken as a joke” by LK. [Tr. 4, 30-31]. He also made

statements to her that her family members were “incapable of loving”

her and “they don’t care about” her and that she should not want to

“wind up like them,” that they were “basically a lost cause.” [Tr. 4, 3132]. He would also say that all of her “friends were losers and that” she

“could do better,” and that “they weren’t going to support” her “or be

there for” her “and that everyone was trying to bring” her “down.” [Tr.

4, 32]. LK testified that she “tried to limit any back and forth” discussion

with him because she “didn’t want to believe those things were true.”

[Tr. 4, 33].

She also testified that one morning he related a dream he had

where she was on his boat with him and also present were some

children, and they were riding into the sunset “or something to that

effect.” During that conversation with the defendant about the dream

she never told him that she wanted to be married and to have children

with him. [Tr. 4, 34-35].

LK also specifically recalled that around June 10, 2011, she was

in her living room. [Tr. 4, 35]. As she was watching TV he attacked her

in a “tickle fight.” As she laid on the couch, he pinned her down and

started touching her with his hands. She tried to push him off and told

him to “stop,” and to “get off” her. [Tr. 4, 36-37]. As he had her pinned,

he used his hands and fingers to tickle her and then he “grabbed” her

breast over her clothes, squeezing “really hard” which caused a “surge

of anger and disgust.” She pushed him off and ran into the bathroom off

of the living room and locked the door and waited until he left. [Tr. 4,

37-39]. The defendant subsequently contacted LK repeatedly that

summer through a bombardment of “emails and texts,” and through

social media accounts. [Tr. 4, 39].

There was also testimony that in the summer in 2011 the

defendant arrived at the Kelley’s Cape home around 8 or 8:30am

inquiring about LK. [Tr. 3, 72-74; 5, 98]. The defendant’s demeanor was

described as “frantic,” and “agitated.” [Tr. 3, 74; 5, 98]. He had a letter

he wanted to give to LK. [Tr. 3, 74; 5, 99-100]. The defendant left and

Mr. Kelley called his daughter letting her know her that the defendant

had left their house and was going somewhere. [Tr. 3, 75-765, 100].

There was further testimony that the defendant then showed up at the

Kelley’s Avon home and began ringing the doorbell. [Tr. 4, 47, 49-51].

LK called her parents to tell them that the defendant was at the home.

[Tr. 4, 51-52]. Mr. Kelley called the defendant and he left the home. [Tr.

Tr. 3, 77; 4, 52-54]. This episode made LK feel “scared,” “intimidated,”

“very alarmed” and “like [she] was in danger. [Tr. 3, 78; 4, 55].

About a week or two after that episode the defendant returned to

the Avon house. Both LK’s parents observed the defendant at the bottom

of the outside stairs early in the morning. [Tr. 5, 100-02]. When

confronted, he stated that he wanted to see LK and that he “wanted to

hear from her, himself, that she didn’t want to see him.” [Tr. 5, 102]. He

then walked away, as though he had parked his vehicle away from the

house. [Tr. 5, 103].

Over the course of that summer of 2011, the family became aware

of the defendant’s blog, titled “Adrift at Sea” associated with his website,

www.dankim.com. [Tr. 3, 103]. In the blog the defendant used LK’s real

name but usually referred to her under the pseudonym “Elie.” [Tr. 3,

103-04]. On August 10, 2011, LK went to Stoughton District Court and

received a temporary harassment prevention order. The following week,

the order was extended a year. [Tr. 3, 104; App. 161]. LK returned to

court each year and had the order extended. [App. 161-68].

On January 18, 2012, the defendant reached out to Kyle Black

who oversaw the dorm where LK lived during the school year. [Tr. 6, 4953]. The meeting lasted 30-40 minutes. [Tr. 6, 54]. The defendant

identified LK and showed some Facebook and Twitter printouts and at

one-point informed Mr. Black that he had been in a romantic

relationship with LK. [Tr. 6, 55]. Mr. Black reviewed the printed social

media posts and believed that they looked to him like “pretty average

college behavior.” [Tr. 6, 56-57]. The following week the defendant left

two voice mails for Mr. Black stating that he “wanted to check on the

progress of anything about” LK. [Tr. 6, 56-57]. Mr. Black did not return

the calls, but he did write a report documenting the meeting, which was

not standard practice. [Tr. 6, 57-58]. Because of the unusual nature of

the meeting, Mr. Black spoke with the college police about the meeting,

but did not speak with LK. [Tr. 6, 58-59].

In January 2012, an officer with the college police thereafter

contacted the defendant via telephone and read a no trespass letter to

him that he would no longer be allowed to come onto the campus and

would be subject to arrest. [Tr. 6, 62-65]. The campus police had become

aware of the non-harassment order.3 [Tr. 6, 64]. Later that same year,

on October 22, 2012, a college police officer met with LK to inform her

that he had become aware of the defendant’s blog that was referencing

her. [Tr. 6, 65-67]. The posts intimated that LK had drug and alcohol

issues, “and that she was basically out of control.” [Tr. 6, 67]. Having

been shown the blog posts LK appeared “to be quite upset,” and “was

teary eyed,” and “seemed to be concerned.” [Tr. 6, 67].

On August 8, 2013, the defendant mailed a package to the Kelley’s

Avon home addressed to the Kelley’s other, younger daughter, Bridget.

3 Later,

on August 16, 2012, the harassment prevention order was

amended to prohibit the defendant from entering the college campus.

[App. 161-62].

[Tr. 3, 109-10]. The package contained a thumb drive, a letter explaining

what was on the thumb drive, and a couple of self-help type books. [Tr.

3, 110-16]. One of the books appeared to be for Alcoholic Anonymous.

[Tr. 3, 116-17]. The parents alerted LK about the package. [Tr. 3, 117].

At the time that the package arrived in the mail, there was an upcoming

court hearing scheduled to extend the harassment order. [Tr. 3, 118].

The package and its contents were taken to the court hearing and later

to the Avon Police Department. [Tr. 3, 118-19].

Avon Police Officer Peter Hutchings received the package and

reviewed the materials, which included a letter, an envelope that was in

with the letter and a thumb drive or a removable disc drive and two

books. [Tr. 6, 5-7]. The thumb drive contained several folders. [Tr. 6, 8].

One file folder was titled “About [LK]” that contained some articles and

some Tweets, related to LK. [Tr. 6, 10]. These materials were as follows:

a Brockton Enterprise article about sex at D.W. Field Park, and an

article titled, “The communication is key,” [Tr. 6, 12]; the Fall 2010 and

Fall 2011, Dean’s List, of the college that LK attended, [Tr. 6, 12]; an

article from the Hingham Journal on marijuana arrests, [Tr. 6, 12]; a

vine, which is a video of LK, [Tr. 6, 12]; a letter titled “Saving Ellie,” [Tr.

6, 12]; snapshots of a Tweet narrative LK posted, [Tr. 5, 12]; and a video

of LK from 2008 playing Scrabble. [Tr. 6, 12-13].

Another folder was titled “Articles I think you must read.” [Tr. 6,

14]. The documents contained within that file folder were described as

articles mostly about addiction recovery. [Tr. 6, 15-16]. Another folder

was titled “From the blog.” [Tr. 6, 16]. In that folder were forty-two

“Adrift at Sea” blog entries. [Tr. 6, 16-17]. The August 8, 2013, blog entry

titled “Stand up for yourself,” caught the attention of Officer Hutchins.

[Tr. 6, 17; App. 157-60]. There was also a folder on the thumb drive

called “Videos.” [Tr. 6, 23]. At the time Officer Hutchings reviewed the

material he was aware that there was an upcoming court hearing at the

Stoughton District Court to extend the harassment prevention order.

[Tr. 6, 19-20]. Officer Hutchins also visited the blog online and testified

that one did not have to enter a password to access the blog. He met with

LK on August 31, 2014, at the police station. [Tr. 6, 21]. At that meeting

she provided thee officer with two printed out blog posts, dated August

1, 2014 and August 15, 2014. [Tr. 6, 22-23; App. 131-156].

REASONS FOR GRANTING THE WRIT

A State Court Is Prohibited From Unilaterally

Determining Whether A Defendant’s Written Speech On

His Blog Is Protected Or Criminal, Without Having To

Submit That Issue/Defense To The Jury

The trial court created a structural error4 by unilaterally

determining that the defendant’s written speech was not protected

A structural error, affects the framework within which the trial

proceeds, and defies harmless error analysis. Thus, when a structural

under the first amendment and then keeping from the jury its right to

pass on the whether the defendant’s speech is protected expression or

criminal. That has always been and must remain for the jury to

determine. Prevailing professional judges think admirably of the

modern-day efficient scheme of criminal justice designed for a society

that is prepared to leave criminal justice to the State. But it would do

well for professional judges to remember that the courts are part of the

State. This Court must place particular emphasis on the role of the jury

as a check on the government generally. Conducting a jury trial is a

check on the exercise of judicial power, and the court cannot infringe on

the province of the jury. See Blakely v. Washington, 542 U.S. 296, 308

(2004) (jury trial is not a limitation on judicial power; jury power limits

judicial power when the judicial power infringes on the province of the

jury).

Both the U.S. and Massachusetts Constitution’s guarantee the

right to a jury trial in criminal prosecutions. See U.S. Const., Amend.

6th, 14th; Mass. Const., Pt. 1st, Art. 12. This right has been incorporated

against the states. See Duncan v. Louisiana, 391 U.S. 145, 148 (1968).

Both the U.S. and the Massachusetts Constitutions also protect a

error is objected to and then raised on direct review, the defendant is

entitled to relief without any inquiry into harm. See Weaver v.

Massachusetts, ___ U.S. ___, 137 S.Ct. 1899, 1902-03 (2017). See also

Neder v. U.S., 527 U.S. 1, 8 (1999) (collecting examples).

defendant’s right to present his defense. See U.S. Const., Amend. 6;

Mass. Const., Pt. 1, Art. 12. Though this right is admittedly not absolute.

The right to present a defense, allows the defendant to present his

version of the “facts to the jury so it may decide where the truth lies.”

Taylor v. Illinois, 484 U.S. 400, 409 (1988). The defendant has “the right

to present his own ... defense. This right is a fundamental element of

due process of law.” Taylor v. Illinois, 484 U.S. at 409.

Under the First Amendment, a citizen has the right to free

expression of ideas through speech or other communications. See U.S.

Const., Amend. 1st. This provision has also been incorporated against

the states. See Gitlow v. New York, 268 U.S. 652, 654 (1925). “Freedom

of speech is a cornerstone of our society, and the First Amendment”

should protect the defendant’s right to use words like the speech at issue

here. Iancu v. Brunetti, ___ U.S. ___, 139 S.Ct. 2294, 2318 (2019). In this

case the defense was, as the Commonwealth outlined, that the

defendant has a First Amendment Right “to say [LK] is a drug addict

alcoholic” on his blog. [Hr. Tr. 5/14/18, 6]. The defendant contends blogs

are today’s equivalent of a bulletin board that one is free to disregard,

in contrast to, for example, emails or phone calls directed to a victim.

See U.S. v. Cassidy, 814 F. Supp. 2d 574, 586 (D. Maryland 2011). See

also Snyder v. Phelps, 562 U.S. 443, 459 (2011) (in most circumstances,

the First Amendment does not permit the government to decide which

types of otherwise protected speech are sufficiently offensive to require

protection for the unwilling listener or viewer; rather, the burden

normally falls upon the viewer to avoid further bombardment of his

sensibilities simply by averting his eyes).

Content-based speech restrictions only fall into a few narrow

exceptions like fighting words, or incitement to imminent lawless

activity. See Chaplinsky v. New Hampshire, 315 U.S. 568, 573 (1942)

(fighting words), Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per

curiam - incitement to imminent lawless activity). See also U.S. v.

Ackell, 907 F.3d 67, 75-76 (1st Cir. 2018) (true threat and/or speech

integral to criminal conduct falls outside of the First Amendment’s

protections). The difficulty with current precedence, is that “a court

faced with speech it finds intolerable may be sorely tempted to find a

way to escape free speech strictures.”5 “In reality, courts regulate a great

deal more speech by excluding it from the scope of the First Amendment.

Thus, despite the strong protection afforded free speech under the First

Amendment,

courts

can

punish

some

disfavored

speech

characterizing it as crime, steeling to action, or ‘speech brigaded with

action’”.6

Benjamin Means, Criminal Speech and the First Amendment, 86

Marquette Law Review, 501, 505-07 (2002).

6 See Means, Crim. Speech and the 1st Amendment, 86 Marquette Law

Review, at 507, citing Brandenburg v. Ohio, 395 U.S. 444, 456 (1969)

(Douglas, J., concurring).

Where this is a purely legal issue, the Court reviews conclusions

of law de novo, subjecting constitutional interpretations to plenary

review. See Ornelas v. U.S., 517 U.S. 690, 698-99 (1996). The petitioner

advances the simple position that a state court cannot unilaterally

determine what speech is protected or criminal and exclude the jury

from deciding on whether speech is protected when raised as a defense.

The freedom of speech issue was first raised in a motion to dismiss

all indictments but Court 2 (Indecent A&B) filed by defense counsel in

July 2016. She specifically argued in her motion that any writing the

Commonwealth

relied

upon

from

“the

blog

postings

www.dankim.com” are “speech which is protected by the First

Amendment to the U.S. Constitution.” [R. App. 54]. At the hearing

defense counsel again asserted that defense. [Hr. Tr. 8/18/16, 5, 8].

When the motion judge denied the pleading on September 9, 2016, there

was no mention of the constitutional argument in the memorandum of

opinion. [App. 85-87]. The ADA later affirmed that the defendant’s

argument from the beginning was that he had a First Amendment Right

“to say [LK] is a drug addict alcoholic” on his blog. [Hr. Tr. 5/14/18, 6].

This is correct.

The First Amendment issue was not again raised until the close

of the Commonwealth’s case at a discussion of the motion for required

finding. The court invited the ADA to say something “about the First

Amendment, protected speech argument.” [Tr. 6, 98]. The ADA

reminded the court that the issue had been raised and denied in the

earlier motion to dismiss. [Tr. 6, 98]. The Commonwealth suggested that

there was not a free speech issue based on the “surrounding

circumstances of all of the defendant’s conduct towards [LK] and the

dark language that he uses, I think that it was clearly a threat.” [Tr. 6,

98]. The court then denied the motion for required finding. [Tr. 6, 99].

Defense counsel then requested that the court create a jury instruction

“as to what protected speech is and what the government has to show.”

[Tr. 6, 107]. This exchange then brought to the court the issue whether

the First Amendment question “is an issue for a jury or is this simply a

question of law for the Court.” [Tr. 6, 108]. The trial judge was not

persuaded that the jury should be so instructed. [Tr. 6, 108]. The judge

believed “that the Court can rule on that as a question of law, it doesn’t

necessarily establish that [the defense is] entitled to a jury instruction

on it.” [Tr. 6, 108-09]. Defense counsel argued that both the court could

pass on the First Amendment (pre and during trial), and so too the jury.

[Tr. 6, 109-12].

The next day before the jury charge, the ADA argued that the

First Amendment issue was a purely legal issue, and it had been decided

in the motions to dismiss and for a required finding. [Tr. 7, 12-13]. The

ADA further moved that “no such language be given to the jury and also

that counsel be prohibited in his closing from making any or raising a

First Amendment defense.” [Tr. 7, 11-12]. The ADA again stressed that

the free speech issue had “already been determined to not be a valid

defense in this case and it could result in essentially a jury nullification

based on a defense that he doesn’t have.” [Tr. 7, 12]. Judge Cosgrove,

specifically ruled that the jury had no place making a determination of

the First Amendment issue, stating, “if it’s protected speech as a matter

of law that Judge Cannone should have allowed the McCarthy[7] motion

and I should have allowed your motion ... for required finding at least to

the extent that the Commonwealth is relying on the particular speech

….” [Tr. 7, 14]. The ADA again reiterated that whether that’s protected

speech or not, the issue had “already been decided by the Court and it’s

not for the jury to re-question that conclusion.” [Tr. 7, 17]. While defense

counsel again strongly disagreed, [Tr. 7, 18-20], he abided by the court’s

order to not raise in his closing a First Amendment defense.

With the exception of Count 2 (Indecent A&B) each of the crimes

charged contains a possible speech element. Stalking requires “a threat

with the intent to place the person in imminent fear of death or bodily

injury.” G.L. c. 265 § 43. Witness intimidation requires a threat, or

7 A motion attacking an indictment. See Commonwealth v. McCarthy,

385 Mass. 160, 163-64 (1982).

intimidation,8 or harassment.9 See G.L. c. 268 § 13B. Criminal

harassment requires conduct (speech or otherwise) which seriously

alarms the person and would cause a reasonable person to suffer

substantial emotional distress. See G.L. c. 265 § 43A(a). And the

violation of a harassment prevention order is premised, in whole or part

by the defendant’s speech.10 See G.L. c. 258E, § 9. [App. 17-18, 43-47, 5364].

The petitioner deems these criminal statutes cannot be applied to

his constitutionally protected verbal or written communication (even

over social media). The “fear or apprehension of actual harm” in the case

of intimidation or the “substantial emotional distress” in the case of

harassment must be a true threat or fighting words as defined by federal

precedence. The Massachusetts courts have already recognized this

concerning the stalking statute.

8 “Intimidation” in G.L. c. 268, § 13B, does not require that the victim be

placed in fear or apprehension of actual harm. See Commonwealth v.

Gordon, 44 Mass. App. Ct. 233, 235 (1998).

9 “‘Harass’, to engage in an act directed at a specific person or group of

persons that seriously alarms or annoys such person or group of persons

and would cause a reasonable person or group of persons to suffer

substantial emotional distress.” G.L. c. 268 § 13B. [Tr. 7, 88, 97].

10 The two action that the defendant took were going to LK’s college in

January 2012, and mailing the package in August 2013. According to

the Commonwealth’s Bill of particulars, the action of mailing the

package went to Count 1 (stalking) and Count 7 (violating the HPO in

2013). [App. 49-50].

A conviction for stalking, where there is verbal or written

communication (even over social media), must be a “true threat,”

meaning the communication is made with the intent to place the person

in imminent fear of death or bodily injury, and therefore is not entitled

to protection under the First Amendment. See Commonwealth v.

Walters, 472 Mass. 680, 690 (2015). See also Van Liew v. Stansfield, 474

Mass. 31, 37 (2016) (“true threats,” these include “direct threats of

imminent physical harm,” as well as “words or actions that—taking into

account the context in which they arise—cause the victim to fear such

[imminent physical] harm now or in the future.”), citing O’Brien v.

Borowski, 461 Mass. 415, 425 (2012).

The free speech right excludes speech that is expressed in two

categories of constitutionally unprotected speech, “fighting words” and

“true threats.” Van Liew v. Stansfield, 474 Mass. at 37, citing O’Brien,

461 Mass. at 425, and Seney v. Morhy, 467 Mass. 58, 63 (2014). See

Commonwealth v. Welch, 444 Mass. 80, 98-99 (2005) (criminalharassment statute cannot be applied to punish constitutionally

protected speech). To qualify as “fighting words” the speech “must be a

direct personal insult addressed to a person, and they must be

inherently likely to provoke violence.” Van Liew v. Stansfield, 474 Mass.

at 37, citing O’Brien, 461 Mass. at 423. The First Circuit requires that

in determining whether a communication is a true threat an objective

standard must be used. See U.S. v. Whiffen, 121 F.3d 18, 20 (1st Cir.

1997) (“whether a communication is a “true threat” is determined

objectively from all the surrounding facts and circumstances, rather

than from the defendant’s subjective purpose.”); U.S. v. Fulmer, 108

F.3d 1486, 1502 (1st Cir. 1997) (objective standard of a “true threat”).

See also D. Brock Hornby, 2009 Revisions to Pattern Criminal Jury

Instructions for the District Courts of the First Circuit § 4.18.875 (2009)

(example instruction). A true threat is one that a reasonable recipient,

familiar with the context of the communication, would find threatening

and that a defendant reasonably should have foreseen would be taken

as a threat. The government does not have to prove that the defendant

subjectively intended the recipient to understand the communication as

a threat. Since there is a real objective standard to true threats, it is for

a jury and not the court to determine. “Fighting words,” are also

considered using the objectively reasonable standard. See Nolan v.

Krajcik, 384 F.Supp.2d 447, 461 (D. Massachusetts 2005); Byrnes v. City

of Manchester, NH, 848 F.Supp.2d 146, 157 (D. New Hampshire 2012).

The fact that fighting words and true threats are to be viewed objectively

is clearly indicative of a jury passing on these terms and not the court.

See Silva v. Norfolk & Dedham Mutual Fire Insurance Company, 91

Mass. App. Ct. 413, 417 (2017) (when courts use an objective test it

requires fact-finder to determine whether a reasonable person, with

knowledge of the relevant facts and law, would probably conclude).

The trial court instructed the jury as to stalking that the

defendant’s pattern of conduct (his speech and actions) “would [have to]

cause a reasonable person to suffer substantial emotional distress,” and

the subjective standard that the victim did “become seriously alarmed

or annoyed.” [Tr. 7, 82-83]. This objective-reasonable-person standard

was also part of the jury instructions as to criminal harassment. [Tr. 7,

84, 86]. No objective-reasonable-person standard was part of the

instructions as to violating the Harassment Prevention Order, criminal

harassment, or witness intimidation.

Again, for verbal or written communication to form the basis of a

stalking conviction it must be a “true threat,” see Commonwealth v.

Walters, 472 Mass. at 692; Van Liew v. Stansfield, 474 Mass. at 37. But

in the stalking instruction the court failed to discuss the free speech

defense even though the act was based on his written blog. In the

instruction discussing criminal harassment, the court did discuss

speech, informing the jury “[s]peech, even offensive speech, enjoys broad

protection under the First Amendment, subject to narrow exceptions.”

[Tr. 7, 84]. While the court told the jury, where the Commonwealth

solely relies on pure speech to satisfy the element, that speech “must

consist of threats or so- called fighting words that directly conveyed to

the alleged victims face.” [Tr. 7, 85]. The court failed to define either the

term threat or fighting-words. While the jury was told that the

defendant’s conduct had to objectively cause substantial emotional

distress, they were not told that the speech had to be a “true threat”

meaning to place the person in imminent fear of death or bodily injury.

See Virginia v. Black, 538 U.S. 343, 347-48 (2003) (state, consistent with

the First Amendment, may only ban intimidating speech, that is most

likely to inspire fear of bodily harm); Chaplinsky v. New Hampshire, 315

U.S. at 573 (defining “fighting words”). The Fourteenth Amendment’s

Privileges and Immunities Clause, the Due Process Clause, and the

Equal Protection Clause requires that these national definitions be told

the jury when a free speech defense is used.

Where the trial court first deemed Mr. Kim’s blog posts to be nonprotected speech, it only had to instruct on whether an objectively

reasonable person would suffer mere substantial-emotional-distress.

But had the court allowed the issue of speech before the jury, the

instruction must add informing the jury that the speech must be either

a true threat or fighting words, meaning objectively seen by the jury as

speech that places the person in imminent fear of death or bodily injury,

or direct personal insult addressed to a person, and it must be inherently

likely to provoke violence. No court can take upon itself the improper

authority to simply deem speech criminal at its whim.

Defense counsel was effectively gagged and precluded from

raising the First Amendment freedom of speech defense to the jury. But

counsel did state in his closing argument;

The blog itself is speech. He said he’s saying something. It’s

not an action. A writing of the blog, I suppose i[t’]s an

action, but the speech is what we’re talking about here. He

wrote something down that he felt or thought. And that’s

what a diary is.

[Tr. 7, 37]. Since the court told the jury that unprotected speech

consisted of threats or fighting words, [Tr. 7, 85], it may have been

helpful for court to define these important terms for the jury. But since

the jury was not being asked to judge whether the speech was or was not

true threats or fighting words, it seems the court deemed it a fairly

superfluous instruction segment. The important language for the jury

was that of speech that violates a no contact order, is not protected. [Tr.

7, 85]. But blogs are public speech and here should not be considered

contact. See U.S. v. Cassidy, 814 F. Supp. 2d at 582 (1st Amend. protects

speech even when expression is uncomfortable and not in good taste, or

classified emotionally distressing or outrageous).

The jury got the point that in each of the charges, the First

Amendment was not an issue in this case. The judge did instruct on

threat (for non-First Amendment purposes), being: “the word ‘threat’

means an act language by which another is placed in fear of injury or

damage and encompasses an implied as well as an express threat.” [Tr.

7, 96]. But a “true threat” where free speech is concerned is only

unprotected if an objectively reasonable person would interpret the

speech as a serious expression of an intent to cause a present or future

harm. The protected status of the threatening speech is not determined

by whether the speaker had the subjective intent to carry out the threat;

rather, to lose the protection of the First Amendment and be lawfully

punished, the threat must be intentionally or knowingly communicated

to either the object of the threat or a third person. But the jury was not

told this because the First Amendment was not an issue in this case

because the trial court simply deemed the speech at issue non-protected,

and deprived the jury of its function.

While the defendant does have this important right to freedom of

speech, and while his speech should not have been susceptible to

criminal action, he may be subject to civil suit under the tort of

defamation. [Hr. Tr. 8/18/16, 12-15]. See generally White v. Blue Cross

and Blue Shield of Massachusetts, Inc., 442 Mass. 64, 66 (2004) (to

prevail on a claim of defamation, a plaintiff must establish defendant

was at fault for publication of a false statement capable of damaging

plaintiff’s reputation that either caused economic loss or is actionable

without proof of economic loss). The test for whether a publication is

defamatory is whether, in the circumstances, the writing discredits the

plaintiff “in the minds of any considerable and respectable segment in

the community.” Tropeano v. Atlantic Monthly Co., 379 Mass. 745, 751

(1980). Where a communication is susceptible of both a defamatory and

nondefamatory meaning, a question of fact exists for the jury. See Jones

v. Taibbi, 400 Mass. 786, 792 (1987). This should have been a civil

defamation case, not criminal.

Generally, it is the application of the standard of facts that

determines constitutional issues. For example, in a dispute as to

whether certain speech is protected or criminal, the jury must

read/listen-to the speech and determine through a unanimous vote that

the speech is or is not a true threat, or fighting words. See

Commonwealth v. Bigelow, 475 Mass. 554, 565 (2016) (letters sent to

selectman contained protected political speech, but jury could find that

letters sent to wife contained speech that could qualify as true threats).

Just as a jury in a civil defamation case gets to determine whether a

communication is defamatory, in the criminal context no court can

justify taking that role as fact-finder away from the jury, and take it for

itself. This Court has stated that the “ultimate issue—whether the

speech is protected—is a question of law.” Rankin v. McPherson, 483

U.S. 378, 385 n.9 (1987), citing Connick v. Meyers, 461 U.S. 138, 148, n.7

(1983). But a free speech right also evokes the right to a defense (and it

is undeniable that a defendant has a constitutional right to present a

defense), which suggests a right to have the jury pass on that defense.

See Johnson Chemical Co. v. Condado Center, Inc., 453 F.2d 1044, 1046

(1st Cir. 1972) (“Supreme Court held that in federal court the jury must

pass on the defense.”).

Whether speech is harassment, meaning a true threat or fighting

words; whether stalking is a true threat is viewed from the perspective

of a reasonable person in the victim’s position, this standard requires a

fact-finder, in this case the jury, to view the conduct/speech. Simply put,

even though courts view speech as a question of law to be determined by

the judge, when raised as a defense by a criminal defendant, the court

must stand aside per the 6th Amendment, which requires the jury

determine whether the speech is protected. The mere guilty verdict by

the jury in this case must be void where it was not properly instructed

on true threats or fighting words.

At worst the substance of these blog posts is kind of creepy, but

there is not a hint of a threat in any of these posts. The first post is

merely a lament because the defendant perceived that he had lost her to

her addictions to drugs and alcohol. [App. 131-35]. The other post is in

anticipation of the renewing of the harassment order. From the

defendant’s point of view his love interest, LK is being pressured to

perjure herself to extend the order. [App. 147-49]. Again, appropriate

adjectives to describe the post could be sad, pathetic, delusional, but

certainly not a threat, not advocating violence. Where this Court allows

this petition, the petitioner will happily provide the many hundreds of

pages with a challenge for this Court to read all the posts, and see for

itself that no threat is ever used; never is any of the language advancing

violence.

The First Amendment must mean that a person has the

fundamental right to think the way he wants, to advocate ideas he sees

as legitimate, even if he is the only one who espouses such beliefs. Where

the speech is defamatory, civil courts can supply a forum and possible

remedy. Where the speech is a true threat, criminal courts may

appropriately punish. But there must be no gray area for the criminal

law to take speech that is bothersome, annoying, or even defamatory

and criminalize the behavior. Language that is merely insulting should

never be criminalized. The clear problem with the criminalizing of

bothersome, annoying, or even defamatory speech is that too many

things can be interpreted as such. See U.S. v. Cassidy, 814 F. Supp. 2d

at 582. Criticism is easily construed as insult by certain parties. Ridicule

is easily taken as defamatory. Sarcasm, unfavorable comparison, merely

stating an alternative point of view to the orthodoxy can be interpreted

as annoying and offensive. So many things can be interpreted as such in

our modern society, this is why clear bright legal lines muse be

reinforced.

II.

A State Court Must Instruct A Jury On The Federal

Definitions Of Fighting Words And True Threats As Well

All Federal Standards For Determining Whether Speech Is

Criminal Or Protected When A Defendant Raises The First

Amendment As A Defense

The problem here is that the trial court had predetermined that

the First Amendment didn’t apply and the jury was free to determine

the elements, but was not instructed on the First Amendment, the

definition of fighting words or true threat, and was not allowed to decide

the defense, namely whether the speech was protected. And since the

defendant is not very sympathetic, it was easy to convict. When a jury

is instructed on the First Amendment and is placed between the

Commonwealth and the defendant to make objectively reasonable

determinations of speech, the individual juror will not be so quick to call

everything a threat or harassment. They will use their communal

standard to view the speech in light of the importance of free speech to

our society.

Trial by jury in serious criminal cases has long been regarded as

an indispensable protection against the possibilities of governmental

oppression. See Brown v. Louisiana, 447 U.S. 323, 330 (1980), citing

Williams v. Florida, 399 U.S. 78, 87 (1970). See also Apodaca v. Oregon,

406 U.S. 404, 410 (1972) (purpose of trial by jury is to prevent oppression

by government by providing a safeguard against corrupt or overzealous

prosecutor and against complaint, biased, or eccentric judge).

Even if this Court does not hold that the errors raised are

structural, the petitioner should still succeed under the harmless-error

standard of review. See Sullivan v. Louisiana, 508 U.S. 275, 279 (1993)

(reviewing court to consider, not what effect the constitutional error

might generally be expected to have upon a reasonable jury, but rather

what effect it had upon the guilty verdict in the case at hand), citing

Chapman v. California, 386 U.S. 18, 24 (1967).

The defendant had a right raise his free speech defense with his

jury and to have that jury pass on his First Amendment argument, to

determine whether his speech in his blog posts were true threats and/or

fighting words. See Commonwealth v. Bigelow, 475 Mass. at 559 (jury

should determine if speech qualifies as true threats or speech); U.S. v.

Clemens, 738 F.3d 1, 13 (1st Cir. 2013) (whether defendant's statements

constituted a threat to injure was an issue of fact for the jury).11 Because

the issue was whether the defendant’s speech was criminal, the court

couldn’t rule as matter of law that the speech was unprotected, but such

decision must be left to the jury. See Bacon v. Boston Elevated Ry. Co.,

256 Mass. 30, 34 (1926) (“Ordinarily when, in a jury trial, an issue of

fact is to be proved and the evidence respecting it is contradictory, it

11 Other circuits agree. See U.S. v. Stock, 728 F.3d 287, 298 (3rd Cir.

2013); U.S. v. White, 670 F.3d 498, 512 (4th Cir. 2012); U.S. v. Parr, 545

F.3d 491, 497 (7th Cir. 2008); U.S. v. Malik, 16 F.3d 45, 49 (2nd Cir.

1994); U.S. v. Alkhabaz, 104 F.3d 1492, 1496 (6th Cir. 1997).

cannot be ruled as matter of law that the fact has or has not been proved,

but such decision must be left to the jury.”).

The First Amendment was the defense the defendant wished to

raise in this case. The lower court precluded the jury from passing on

the issue which allowed it to not have to instruct the jury as to whether

the speech in question was objectively a true threat for fighting words.

As far as being an error, the Court has held that “a jury instruction that

omits an element of the offense” is not structural error. See Neder v.

U.S., 527 U.S. at 8. But the omitted elements required by the First

Amendment, are the definition of true threat and fighting words, and an

objectively reasonable instruction, which encapsulate the defense that

must be deemed essential for any claim to protected speech. Preventing

a defendant from arguing a legitimate defense theory must constitute

structural error. See U.S. v. Miguel, 338 F.3d 995, 997 (9th Cir. 2003),

and Conde v. Henry, 198 F.3d 734, 741-42 (9th Cir. 2000). See also

Holmes v. South Carolina, 547 U.S. 319, 328-29 (2006) (exclusion of

defense evidence in light of strong forensic evidence of defendant’s guilt,

denied defendant fair trial; trial court had focused on the strength of the

prosecution’s case, rather than the probative value or the potential

adverse effects of admitting the defense evidence); Crane v. Kentucky,

476 U.S. 683, 689-90 (1986) (exclusion of confession deprived defendant

of a fair trial; manner in which confession was obtained is often highly

relevant).

The exclusion of the First Amendment defense from the jury and

the lower court’s failure to so instruct has to be structural error, and a

new trial must be ordered so the jury may decide the speech issue. See

U.S. v. Read, 918 F.3d 712, 720 (9th Cir. 2019) (denial of right to choose

defense is a structural error, and the proper remedy is a new trial).

While the criminal harassment statute includes within its reach

constitutionally unprotected “fighting words” and “true threats” that

does not place a person in imminent fear of death or bodily injury, see

O’Brien v. Borowski, 461 Mass. at 425-26, such speech harassment must

be considered with other evidence. See Commonwealth v. Brennan, 481

Mass. 146, 150 (2018). But a defendant must still be allowed to raise his

defense and the jury to pass on that defense based upon all the facts and

circumstances.

Last the Mass. Appeals Court engaged in some doublespeak when

deciding this case. It first affirmed that the fact-finder determines what

constitutes a true threat or fighting words. [App. 7]. It then held that

there was evidence “sufficient for a jury to find that the defendant’s blog

posts contained true threats made to place the victim in reasonable fear

of death or bodily injury.” [App. 7]. The opinion omits the fact that the

jury was never instructed that it had to find the speech place the victim

in reasonable fear of death or bodily injury. But then the opinion went

on to say that trial judges “have considerable discretion in framing jury

instructions, both in determining the precise phraseology used and the

appropriate degree of elaboration.” [App. 9]. The law cannot have it both

ways, that is not fair.

Even this evidence, even in the light most favorable to the

government, there are simply no true threat in the defendant’s writings,

he never used fighting words or other violent incendiary speech. Where

the blog posts were used to convict, those counts must be dismissed.

This case presents an important issue for appellate review.

Conclusion

The Massachusetts court’s rejection of standards articulated by

the First Amendment affected the outcome of the petitioner’s case and

will no doubt continue to affect cases of other similarly situated

defendants in state and federal courts. Where the fundamental rights of

countless criminal defendants are at stake and will continue to be

compromised as a result of the confusion on this issue, the writ should

be granted and the case briefed and set down for argument.

Respectfully submitted,

Daniel Kim,

By his attorney,

//S//

Brad P. Bennion

P.O. Box 890118

East Weymouth, Massachusetts 02189

(617) 943-6164

bradpbennion@gmail.com

Counsel of Record for the Petitioner

Dated: April 4, 2023

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.