Commonwealth v. Cruz, 495 Mass. 110 (2024)

In the case Commonwealth v. Cruz, the Massachusetts Supreme Judicial Court considered whether a criminal conviction for threatening to commit a crime violated the First Amendment after the U.S. Supreme Court’s decision in Counterman v. Colorado (2023). In Counterman, the Supreme Court held that true threats are only punishable when the speaker acts with at least a reckless disregard that their statements could be perceived as threatening violence. In Commonwealth v. Cruz, the defendant had sent a series of hostile text messages to his ex-girlfriend two years after their breakup, including a message stating, “I’ll punch you in your f*cking face b*tch,” which served as the basis for his conviction. The trial court did not instruct the jury to find that the defendant possessed the mens rea requirement for a criminal conviction. The Supreme Judicial Court of Massachusetts then vacated the conviction, holding that without such a jury instruction, the conviction was a violation of the First Amendment. However, the Court rejected the defendant’s arguments that the statute was facially overbroad or that retrial was barred by double jeopardy, noting that the statute could be narrowly construed to require recklessness, and that the evidence presented was enough to support a conviction under the new Counterman standard. The case was remanded for a new trial.