NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
25-P-277
J.W.
vs.
T.S.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
What began as friendly social media conversations about
local politics between two people from Winthrop devolved into a
situation in which the plaintiff felt targeted by the
defendant's comments in his social media posts, private
messages, and text messages. On January 18, 2024, the plaintiff
applied for a harassment prevention order (c. 258E order),
pursuant to G. L. c. 258E, after her requests that the defendant
stop communicating with her went ignored. The judge did not
issue a c. 258E order at the ex parte hearing and continued the
case to February 21, 2024, for a two-party hearing. On February
21, 2024, the parties agreed to participate in mediation in lieu
of a two-party hearing. On March 7, 2024, the parties entered into a written agreement to stay away and have no contact with
one another, and they agreed they would not post about each
other personally on social media.1 The parties presented the
agreement to the judge, who approved the agreement, and no
c. 258E order issued. While the mediation agreement seemingly
was effective in preventing contact between the parties for a
period of time, the defendant filed a motion to vacate the
mediation agreement because it did not specify an end date. On
February 5, 2025, the parties appeared for a hearing on the
defendant's motion to vacate, and the judge conducted an
evidentiary hearing to determine whether a c. 258E order should
issue. Both parties testified, and at the conclusion of the
hearing, the judge issued a c. 258E order against the defendant
for two years.
The defendant has appealed from the issuance of the c. 258E
order, arguing, among other things, that the plaintiff failed to
establish three qualifying acts of harassment and that the judge
erred by issuing the c. 258E order for two years. Because there
is insufficient basis in the record on which a c. 258E order
could have lawfully issued, we remand the case for entry of an
order vacating and setting aside the harassment prevention
order.
1 This agreement was later approved by a judge after "inquiry."
2 Discussion. To obtain a harassment prevention order, a
plaintiff must demonstrate "harassment," which the statute
defines in relevant part as "[three] or more acts of willful and
malicious conduct aimed at a specific person committed with the
intent to cause fear, intimidation, abuse or damage to property
and that does in fact cause fear, intimidation, abuse or damage
to property." G. L. c. 258E, § 1. In reviewing the issuance of
a harassment prevention order, "we consider whether the judge
could find, by a preponderance of the evidence, together with
all permissible inferences," that the defendant committed three
or more qualifying acts of harassment aimed at a specific
person. A.T. v. C.R., 88 Mass. App. Ct. 532, 535 (2015). No
specific findings are required if, after reviewing the record,
we can "discern a reasonable basis for the order in the judge's
rulings and order." G.B. v. C.A., 94 Mass. App. Ct. 389, 396
(2018). The plaintiff bears the burden of establishing that the
three acts were "maliciously intended," defined by the statute
as being "characterized by cruelty, hostility, or revenge."
A.T. v. C.R., 88 Mass. App. Ct. at 535. "The definition of
'harassment' in c. 258E was crafted by the Legislature to
'exclude constitutionally protected speech,' . . . and to limit
the categories of constitutionally unprotected speech that may
qualify as 'harassment' to two: 'fighting words' and 'true
threats.'" Van Liew v. Stansfield, 474 Mass. 31, 37 (2016),
3 quoting O'Brien v. Borowski, 461 Mass. 415, 425 (2012). See
Seney v. Morhy, 467 Mass. 58, 63 (2014) ("Conduct may constitute
civil harassment where an individual willfully and maliciously
uses 'fighting words' . . . or uses 'true threats'" [citation
omitted]). True threats have been defined as "words or actions
that -- taking into account the context in which they arise --
cause the victim to fear [physical] harm now or in the future
and evince intent on the part of the speaker or actor to cause
such fear." O'Brien, supra at 425. See A.R. v. L.C., 93 Mass.
App. Ct. 758, 760 (2018).
The defendant argues that there was insufficient evidence
for the judge to have found the defendant committed three
qualifying acts of harassment. The plaintiff's testimony at the
evidentiary hearing, which the judge credited, included her
testimony that in 2017 she and the defendant had "amicable
conversations about community issues" on social media and later
by text messages, e-mail messages, and telephone. However, in
the following year or two, the defendant began sending her
countless e-mail and text messages that contained offensive
language, insulting and ridiculing her about her positions on
bike lanes and transportation issues. One such instance
occurred in 2019, when the defendant disagreed with the
plaintiff's position on how best to address traffic issues in
the town. The plaintiff sent the defendant an e-mail message in
4 which she expressed her displeasure and frustration with the
defendant's communication style and what she believed was his
hostile tone toward her. The defendant replied with a
particularly caustic e-mail message response, leaving the
plaintiff feeling attacked and vulnerable.2
After a lull in communication between 2019 and 2022, the
defendant once again began to frequently send Facebook messages
to the plaintiff in the summer of 2022. At that point, the
plaintiff testified that the defendant's behavior escalated
despite her multiple requests that he refrain from contacting
her or speaking about her in public and even after she blocked
him from communicating with her on Facebook. The defendant
posted comments about her on a Facebook group called "Winthrop
Votes" in which he was the moderator, criticizing the plaintiff
on a variety of topics, including the plaintiff's support of a
certain candidate for political office and, in a different post,
ridiculing her for taking her infant child to an event
supporting bike lanes. The plaintiff testified that in October
2 The defendant's e-mail message to the plaintiff stated, "GO FUCK YOURSELF!! You don't feel safe, I don't give a rat[']s ass, I hope it motivates you to leave Winthrop.
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
25-P-277
J.W.
vs.
T.S.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
What began as friendly social media conversations about
local politics between two people from Winthrop devolved into a
situation in which the plaintiff felt targeted by the
defendant's comments in his social media posts, private
messages, and text messages. On January 18, 2024, the plaintiff
applied for a harassment prevention order (c. 258E order),
pursuant to G. L. c. 258E, after her requests that the defendant
stop communicating with her went ignored. The judge did not
issue a c. 258E order at the ex parte hearing and continued the
case to February 21, 2024, for a two-party hearing. On February
21, 2024, the parties agreed to participate in mediation in lieu
of a two-party hearing. On March 7, 2024, the parties entered into a written agreement to stay away and have no contact with
one another, and they agreed they would not post about each
other personally on social media.1 The parties presented the
agreement to the judge, who approved the agreement, and no
c. 258E order issued. While the mediation agreement seemingly
was effective in preventing contact between the parties for a
period of time, the defendant filed a motion to vacate the
mediation agreement because it did not specify an end date. On
February 5, 2025, the parties appeared for a hearing on the
defendant's motion to vacate, and the judge conducted an
evidentiary hearing to determine whether a c. 258E order should
issue. Both parties testified, and at the conclusion of the
hearing, the judge issued a c. 258E order against the defendant
for two years.
The defendant has appealed from the issuance of the c. 258E
order, arguing, among other things, that the plaintiff failed to
establish three qualifying acts of harassment and that the judge
erred by issuing the c. 258E order for two years. Because there
is insufficient basis in the record on which a c. 258E order
could have lawfully issued, we remand the case for entry of an
order vacating and setting aside the harassment prevention
order.
1 This agreement was later approved by a judge after "inquiry."
2 Discussion. To obtain a harassment prevention order, a
plaintiff must demonstrate "harassment," which the statute
defines in relevant part as "[three] or more acts of willful and
malicious conduct aimed at a specific person committed with the
intent to cause fear, intimidation, abuse or damage to property
and that does in fact cause fear, intimidation, abuse or damage
to property." G. L. c. 258E, § 1. In reviewing the issuance of
a harassment prevention order, "we consider whether the judge
could find, by a preponderance of the evidence, together with
all permissible inferences," that the defendant committed three
or more qualifying acts of harassment aimed at a specific
person. A.T. v. C.R., 88 Mass. App. Ct. 532, 535 (2015). No
specific findings are required if, after reviewing the record,
we can "discern a reasonable basis for the order in the judge's
rulings and order." G.B. v. C.A., 94 Mass. App. Ct. 389, 396
(2018). The plaintiff bears the burden of establishing that the
three acts were "maliciously intended," defined by the statute
as being "characterized by cruelty, hostility, or revenge."
A.T. v. C.R., 88 Mass. App. Ct. at 535. "The definition of
'harassment' in c. 258E was crafted by the Legislature to
'exclude constitutionally protected speech,' . . . and to limit
the categories of constitutionally unprotected speech that may
qualify as 'harassment' to two: 'fighting words' and 'true
threats.'" Van Liew v. Stansfield, 474 Mass. 31, 37 (2016),
3 quoting O'Brien v. Borowski, 461 Mass. 415, 425 (2012). See
Seney v. Morhy, 467 Mass. 58, 63 (2014) ("Conduct may constitute
civil harassment where an individual willfully and maliciously
uses 'fighting words' . . . or uses 'true threats'" [citation
omitted]). True threats have been defined as "words or actions
that -- taking into account the context in which they arise --
cause the victim to fear [physical] harm now or in the future
and evince intent on the part of the speaker or actor to cause
such fear." O'Brien, supra at 425. See A.R. v. L.C., 93 Mass.
App. Ct. 758, 760 (2018).
The defendant argues that there was insufficient evidence
for the judge to have found the defendant committed three
qualifying acts of harassment. The plaintiff's testimony at the
evidentiary hearing, which the judge credited, included her
testimony that in 2017 she and the defendant had "amicable
conversations about community issues" on social media and later
by text messages, e-mail messages, and telephone. However, in
the following year or two, the defendant began sending her
countless e-mail and text messages that contained offensive
language, insulting and ridiculing her about her positions on
bike lanes and transportation issues. One such instance
occurred in 2019, when the defendant disagreed with the
plaintiff's position on how best to address traffic issues in
the town. The plaintiff sent the defendant an e-mail message in
4 which she expressed her displeasure and frustration with the
defendant's communication style and what she believed was his
hostile tone toward her. The defendant replied with a
particularly caustic e-mail message response, leaving the
plaintiff feeling attacked and vulnerable.2
After a lull in communication between 2019 and 2022, the
defendant once again began to frequently send Facebook messages
to the plaintiff in the summer of 2022. At that point, the
plaintiff testified that the defendant's behavior escalated
despite her multiple requests that he refrain from contacting
her or speaking about her in public and even after she blocked
him from communicating with her on Facebook. The defendant
posted comments about her on a Facebook group called "Winthrop
Votes" in which he was the moderator, criticizing the plaintiff
on a variety of topics, including the plaintiff's support of a
certain candidate for political office and, in a different post,
ridiculing her for taking her infant child to an event
supporting bike lanes. The plaintiff testified that in October
2 The defendant's e-mail message to the plaintiff stated, "GO FUCK YOURSELF!! You don't feel safe, I don't give a rat[']s ass, I hope it motivates you to leave Winthrop. Like I said before, people like you make me fucking sick. You think you do no wrong and you think you know everything. Please go back to the state of losers and stop trying to turn Massachusetts into the shithole that California is." At the hearing, the defendant acknowledged that his e-mail message response was not respectful.
5 of 2023, during which time the defendant was publicly
criticizing the plaintiff's support of a bike lane in Winthrop,
the defendant parked his truck directly in front of her home,
even though there were open parking spaces elsewhere on the
street. In a January 2024 "Winthrop Votes" podcast, the
defendant focused his attention on the plaintiff, telling the
audience that he was "going after" the plaintiff and that she
was "about to be exposed." In November 2024, after the
plaintiff voted in a local election and exited a polling
location with her young child, the defendant was outside and
said "smells like shit" as she walked past.
At the conclusion of the hearing, the judge stated in oral
findings that there were "at least two" instances of harassment,
crediting "that one in '23, and I'm going to credit October
20th." We discern from the record that the first instance the
judge relied on was the October 2023 incident in which the judge
found that the defendant intentionally parked his car in front
of the plaintiff's home to send her a message that "he knows
where she lives" and for the purpose of intimidating her. While
it is unclear what specific instance of harassment the judge
credited from 2023, it appears to be the November 2024 incident
outside the polling station on election day. Even assuming,
without deciding, that these two instances qualify as harassment
when considered in the totality of the circumstances, we can
6 discern no evidence of a third qualifying act of harassment.
The defendant's manner of communicating with the plaintiff and
his use of social media to discuss her was undoubtedly rude,
offensive, and abrasive. On this record, however, the plaintiff
has not sustained her burden of proof to show that the
defendant's statements fall within the definition of true
threats as described in O'Brien. To support the issuance of a
c. 258E order, a true threat must be intended to cause "fear of
physical harm or fear of physical damage to property" and must
in fact cause such fear. O'Brien, 461 Mass. at 427.
At the hearing, the plaintiff agreed that the defendant
never physically harmed or threatened to physically harm her or
any member of her family. The defendant's statements, including
his statement to the plaintiff to "go fuck yourself," that he
did not care if she felt safe, and that he hoped that she would
move out of Winthrop -- troubling and offensive as they were --
failed to satisfy the threshold requirement of harassment as a
direct or indirect threat. Similarly, the defendant's
statements on his podcast that the plaintiff was "about to be
exposed," asking "why am I going after [the plaintiff]?" and
suggesting that others send the plaintiff a message that "the
guys on Winthrop Votes want to know who's lying," are not
sufficient to establish harassment. We have carefully reviewed
the entire record and conclude that none of the other statements
7 on the defendant's podcast or other social media comments
constitute harassment as defined under G. L. c. 258E, § 1.
Rather, they fall within the category of protected speech under
the First Amendment to the United States Constitution. Vacatur
of the c. 258E order in this case is required. Finally, we
reject the plaintiff's argument, unsupported by any authority,
that the mediation agreement approved by the judge in May 2024
amounted to or was the functional equivalent of a c. 258E order.
A harassment prevention order must comply with all of the
requirements set forth in G. L. c. 258E, § 3 (d), and must also
not "extend for a period exceeding 1 year." G. L. c. 258E,
§ 3 (d).
The case is remanded for the entry of an order vacating and
setting aside the harassment prevention order, and for further
actions required by G. L. c. 258E, § 9.
So ordered.
By the Court (Walsh, Toone & Tan, JJ.3),
Clerk
Entered: February 3, 2026.
3 The panelists are listed in order of seniority.