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
23-P-291
K.B.
vs.
D.O.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, D.O., appeals from an order of the District
Court dated September 22, 2022, extending a harassment
prevention order issued pursuant to G. L. c. 258E. Because we
cannot identify three acts of harassment on this record, we
vacate the order and remand.
Background. On September 7, 2022, the plaintiff applied
for an ex parte harassment prevention order against the
defendant pursuant to G. L. c. 258E. The plaintiff is an
investigator for the Department of Children and Families. The
plaintiff investigated reports that the defendant had abused or
neglected her children. The plaintiff's affidavit asserted that
she was "scared for [her] physical safety" because the defendant
had posted "continuous threats towards [the plaintiff] online."
The threats the plaintiff alleged included the defendant posting on social media a picture of the plaintiff as a juvenile;
posting the plaintiff's husband's obituary, which included the
names of the plaintiff's children; "using [the plaintiff's]
photo to slander government agencies;" and stating that "she
will do whatever it takes to take [the plaintiff] down." The
judge issued the ex parte order and a two-party hearing was
scheduled for September 22, 2022.
At the hearing, both the plaintiff and the defendant were
present. Neither party was represented by counsel. The
plaintiff testified that the defendant's actions caused her to
feel "terrified, intimidated, fearful and anxious." She
reiterated several of her complaints about the defendant's
social media posts, which included the plaintiff's husband's
obituary, a photo of the plaintiff as a minor, and a statement
that the defendant would "take [the plaintiff] down if it's the
last thing she does." The plaintiff also testified that the
defendant posted a statement that read, "Closer to her children
every single day. That must really freak you out, [plaintiff].
You are probably wetting yourself right now." Finally, the
plaintiff alleged that the defendant posted a news story about
DCF misconduct, with a comment that the plaintiff was "probably
involved."
The defendant argued that her social media posts were not
proper grounds for a harassment prevention order because they
2 were neither "true threat[s]" nor "fighting words" and instead
amounted to "First Amendment protected speech." As context for
her statements, she testified that the plaintiff had damaged her
family life with an illegitimate and discriminatory DCF
investigation that wrongly caused the defendant to be separated
from her children.
The judge credited the plaintiff's testimony as to the
content of the defendant's social media posts. He found that
the plaintiff had demonstrated "a substantial likelihood of
immediate danger of abuse" and that "there has been testimony
pertaining to three or more acts aimed specifically by [the
defendant] at [the plaintiff]." The judge did not identify
which three acts he found qualified as unlawful harassment. The
judge extended the harassment prevent order, which was in effect
until September 21, 2023. The defendant appealed the order to
this court.
Discussion. The defendant argues that the District Court
judge abused his discretion by extending the harassment
prevention order when there was insufficient evidence that the
defendant made "true threats" against the plaintiff, and that
there were not three incidents of harassment against the
plaintiff, as the statute requires. "[T]here are two layers of
intent required to prove civil harassment under c. 258E: the
acts of harassment must be wil[l]ful and '[m]alicious,' the
3 latter defined as 'characterized by cruelty, hostility or
revenge,' and they must be committed with 'the intent to cause
fear, intimidation, abuse or damage to property.'" O'Brien v.
Borowksi, 461 Mass. 415, 420 (2012), quoting G. L. c. 258E, § 1.
To prevent chilling a defendant's rights under the First
Amendment, that speech must constitute "true threats" or
"fighting words" to qualify as an act of harassment. Seney v.
Morhy, 467 Mass. 58, 63 (2014). "[T]he 'true threat' doctrine
applies . . . [both] to direct threats of imminent physical
harm, [and] to words or actions that -- taking into account the
context in which they arise -- cause the victim to fear such
harm now or in the future and evince intent on the part of the
speaker or actor to cause such fear." O'Brien, 461 Mass. at
425. "[T]he true threats cannot be threats to do just any kind
of harm; they must be intended to cause 'fear of physical harm'
or . . . 'physical damage to property.'" A.R. v. L.C., 93 Mass.
App. Ct. 758, 760 (2018), quoting O'Brien, supra at 427.
Because the judge did not identify which of the defendant's
actions constituted three acts of harassment, we review the
entirety of the record.
Here, the defendant did not send any messages to the
plaintiff or otherwise contact her directly, but instead made
the plaintiff the subject of Facebook posts of which the
plaintiff was made aware by another person who viewed the posts.
4 Based on the plaintiff's description of these posts, which the
judge credited, they neither threatened physical harm toward the
plaintiff nor damage to the plaintiff's property.
The posts, instead, appeared to target the plaintiff's
reputation and cause her emotional distress. The defendant's
posting of the husband's obituary, for example, does not appear
to be a threat to cause the plaintiff physical harm, but instead
to upset the plaintiff by highlighting her husband's passing.
Reposting this publicly available information may be distasteful
or even contemptible; it is not a true threat under c. 258E.
As for the defendant's posted statement that she would
"take [the plaintiff] down if it's the last thing she does," we
view this as a promise to inflict reputational damage and not
cause physical harm to the plaintiff. This does not qualify as
a "true threat" under c. 258E. O'Brien, supra at 427
("unfavorable publicity . . . cannot be enough to make the
threat a 'true threat' that may be prohibited as civil
harassment"). However, even if a "true threat" that would only
be one act of unlawful harassment. The news story the defendant
Free access — add to your briefcase to read the full text and ask questions with AI
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
23-P-291
K.B.
vs.
D.O.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, D.O., appeals from an order of the District
Court dated September 22, 2022, extending a harassment
prevention order issued pursuant to G. L. c. 258E. Because we
cannot identify three acts of harassment on this record, we
vacate the order and remand.
Background. On September 7, 2022, the plaintiff applied
for an ex parte harassment prevention order against the
defendant pursuant to G. L. c. 258E. The plaintiff is an
investigator for the Department of Children and Families. The
plaintiff investigated reports that the defendant had abused or
neglected her children. The plaintiff's affidavit asserted that
she was "scared for [her] physical safety" because the defendant
had posted "continuous threats towards [the plaintiff] online."
The threats the plaintiff alleged included the defendant posting on social media a picture of the plaintiff as a juvenile;
posting the plaintiff's husband's obituary, which included the
names of the plaintiff's children; "using [the plaintiff's]
photo to slander government agencies;" and stating that "she
will do whatever it takes to take [the plaintiff] down." The
judge issued the ex parte order and a two-party hearing was
scheduled for September 22, 2022.
At the hearing, both the plaintiff and the defendant were
present. Neither party was represented by counsel. The
plaintiff testified that the defendant's actions caused her to
feel "terrified, intimidated, fearful and anxious." She
reiterated several of her complaints about the defendant's
social media posts, which included the plaintiff's husband's
obituary, a photo of the plaintiff as a minor, and a statement
that the defendant would "take [the plaintiff] down if it's the
last thing she does." The plaintiff also testified that the
defendant posted a statement that read, "Closer to her children
every single day. That must really freak you out, [plaintiff].
You are probably wetting yourself right now." Finally, the
plaintiff alleged that the defendant posted a news story about
DCF misconduct, with a comment that the plaintiff was "probably
involved."
The defendant argued that her social media posts were not
proper grounds for a harassment prevention order because they
2 were neither "true threat[s]" nor "fighting words" and instead
amounted to "First Amendment protected speech." As context for
her statements, she testified that the plaintiff had damaged her
family life with an illegitimate and discriminatory DCF
investigation that wrongly caused the defendant to be separated
from her children.
The judge credited the plaintiff's testimony as to the
content of the defendant's social media posts. He found that
the plaintiff had demonstrated "a substantial likelihood of
immediate danger of abuse" and that "there has been testimony
pertaining to three or more acts aimed specifically by [the
defendant] at [the plaintiff]." The judge did not identify
which three acts he found qualified as unlawful harassment. The
judge extended the harassment prevent order, which was in effect
until September 21, 2023. The defendant appealed the order to
this court.
Discussion. The defendant argues that the District Court
judge abused his discretion by extending the harassment
prevention order when there was insufficient evidence that the
defendant made "true threats" against the plaintiff, and that
there were not three incidents of harassment against the
plaintiff, as the statute requires. "[T]here are two layers of
intent required to prove civil harassment under c. 258E: the
acts of harassment must be wil[l]ful and '[m]alicious,' the
3 latter defined as 'characterized by cruelty, hostility or
revenge,' and they must be committed with 'the intent to cause
fear, intimidation, abuse or damage to property.'" O'Brien v.
Borowksi, 461 Mass. 415, 420 (2012), quoting G. L. c. 258E, § 1.
To prevent chilling a defendant's rights under the First
Amendment, that speech must constitute "true threats" or
"fighting words" to qualify as an act of harassment. Seney v.
Morhy, 467 Mass. 58, 63 (2014). "[T]he 'true threat' doctrine
applies . . . [both] to direct threats of imminent physical
harm, [and] to words or actions that -- taking into account the
context in which they arise -- cause the victim to fear such
harm now or in the future and evince intent on the part of the
speaker or actor to cause such fear." O'Brien, 461 Mass. at
425. "[T]he true threats cannot be threats to do just any kind
of harm; they must be intended to cause 'fear of physical harm'
or . . . 'physical damage to property.'" A.R. v. L.C., 93 Mass.
App. Ct. 758, 760 (2018), quoting O'Brien, supra at 427.
Because the judge did not identify which of the defendant's
actions constituted three acts of harassment, we review the
entirety of the record.
Here, the defendant did not send any messages to the
plaintiff or otherwise contact her directly, but instead made
the plaintiff the subject of Facebook posts of which the
plaintiff was made aware by another person who viewed the posts.
4 Based on the plaintiff's description of these posts, which the
judge credited, they neither threatened physical harm toward the
plaintiff nor damage to the plaintiff's property.
The posts, instead, appeared to target the plaintiff's
reputation and cause her emotional distress. The defendant's
posting of the husband's obituary, for example, does not appear
to be a threat to cause the plaintiff physical harm, but instead
to upset the plaintiff by highlighting her husband's passing.
Reposting this publicly available information may be distasteful
or even contemptible; it is not a true threat under c. 258E.
As for the defendant's posted statement that she would
"take [the plaintiff] down if it's the last thing she does," we
view this as a promise to inflict reputational damage and not
cause physical harm to the plaintiff. This does not qualify as
a "true threat" under c. 258E. O'Brien, supra at 427
("unfavorable publicity . . . cannot be enough to make the
threat a 'true threat' that may be prohibited as civil
harassment"). However, even if a "true threat" that would only
be one act of unlawful harassment. The news story the defendant
posted about DCF misconduct with which she stated the plaintiff
was "probably involved" is not a threat. This post targeted the
plaintiff's professional reputation, which does not amount to
civil harassment under the statute.
5 The plaintiff also testified to a post by the defendant
which read, "Closer to her children every single day. That must
really freak you out, [plaintiff]. You are probably wetting
yourself right now." While it could be suggested that by
writing "her children" the defendant was referring to the
plaintiff's children, we think it more plausible that the
defendant was referencing her own children, from whom she had
apparently been separated as a result of the plaintiff's DCF
investigation. Accordingly, this statement does not qualify as
a true threat. However, even if a true threat, that would be
only the second act of unlawful harassment.
We recognize that this dispute has caused both parties
significant distress. However, to ensure that courts are not
improperly restricting freedom of speech, "the term 'harass' has
a specific definition in this context, derived from the statute
and case law, a definition much more exacting than common
usage." Gassman v. Reason, 90 Mass. App. Ct. 1, 8 (2016).
Because the evidence adduced at the hearing failed to satisfy
the threshold requirements of G. L. c. 258E, § 1, the harassment
prevention order should not have issued and must be vacated.
Moreover, "if a judge vacates a harassment prevention order, law
enforcement officials shall destroy 'all record' concerning such
order." Seney, 467 Mass. at 60-61, quoting G. L. c. 258E, § 9.
The order dated September 22, 2022, is vacated, and the case is
6 remanded for further actions as required by G. L. c. 258E, § 9.
See F.K. v. S.C., 481 Mass. 325, 335 (2019).
So ordered.
By the Court (Henry, D'Angelo & Hodgens, JJ.1),
Assistant Clerk
Entered: February 15, 2024.
1 The panelists are listed in order of seniority.