From Okay.B. v. D.O., determined immediately by the Massachusetts Appellate Court docket (in a nonprecedential opinion by Justices Vickie Henry, Andrew D’Angelo & Christopher Hodgens):
The plaintiff is an investigator for the Division of Youngsters and Households. The plaintiff investigated experiences that the defendant had abused or uncared for her kids. The plaintiff’s affidavit asserted that she was “scared for [her] physical safety” as a result of the defendant had posted “continuous threats towards [the plaintiff] online.” The threats the plaintiff alleged included the defendant posting on social media an image of the plaintiff as a juvenile; posting the plaintiff’s husband’s obituary, which included the names of the plaintiff’s kids; “using [the plaintiff’s] photo to slander government agencies;” and stating that “she will do whatever it takes to take [the plaintiff] down.” …
The plaintiff testified that the defendant’s actions prompted her to really feel “terrified, intimidated, fearful and anxious.” … The plaintiff additionally testified that the defendant posted a press release that learn, “Closer to her children every single day. That must really freak you out, [plaintiff]. You are probably wetting yourself right now.” Lastly, the plaintiff alleged that the defendant posted a information story about DCF misconduct, with a remark that the plaintiff was “probably involved.” [Based on this, the judge issued a harassment prevention order.] …
“[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 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.'” To stop chilling a defendant’s rights beneath the First Modification, that speech should represent “true threats” or “fighting words” to qualify as an act of harassment…. “[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.'” …
Right here, the defendant didn’t ship any messages to the plaintiff or in any other case contact her immediately, however as an alternative made the plaintiff the topic of Fb posts of which the plaintiff was made conscious by one other one who considered the posts. Primarily based on the plaintiff’s description of those posts, which the decide credited, they neither threatened bodily hurt towards the plaintiff nor injury to the plaintiff’s property.
The posts, as an alternative, appeared to focus on the plaintiff’s status and trigger her emotional misery. The defendant’s posting of the husband’s obituary, for instance, doesn’t seem like a risk to trigger the plaintiff bodily hurt, however as an alternative to upset the plaintiff by highlighting her husband’s passing. Reposting this publicly accessible data could also be distasteful and even contemptible; it isn’t a real risk beneath c. 258E.
As for the defendant’s posted assertion that she would “take [the plaintiff] down if it’s the last thing she does,” we view this as a promise to inflict reputational injury and never trigger bodily hurt to the plaintiff. This doesn’t qualify as a “true threat” beneath c. 258E…. “[I]nfavorable publicity … cannot be enough to make the threat a ‘true threat’ that may be prohibited as civil harassment[.]” … Nonetheless, even when a “true threat” that will solely be one act of illegal harassment [and the Massachusetts statute requires at least three acts to justify a harassment prevention order -EV]. The information story the defendant posted about DCF misconduct with which she said the plaintiff was “probably involved” will not be a risk. This publish focused the plaintiff’s skilled status, which doesn’t quantity to civil harassment beneath the statute.
The plaintiff additionally testified to a publish by the defendant which learn, “Closer to her children every single day. That must really freak you out, [plaintiff]. You are probably wetting yourself right now.” Whereas it could possibly be instructed that by writing “her children” the defendant was referring to the plaintiff’s kids, we expect it extra believable that the defendant was referencing her personal kids, from whom she had apparently been separated because of the plaintiff’s DCF investigation. Accordingly, this assertion doesn’t qualify as a real risk. Nonetheless, even when a real risk, that will be solely the second act of illegal harassment.
We acknowledge that this dispute has prompted each events important misery. Nonetheless, to make sure that courts should not improperly limiting 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.” As a result of the proof adduced on the listening to didn’t fulfill the edge necessities of G. L. c. 258E, § 1, the harassment prevention order shouldn’t have issued and have to be vacated….