The Volokh Conspiracy
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From A.G. v. K.O., decided by the Massachusetts Appeals Court Tuesday (Sullivan, Kinder & Lemire):
The plaintiff is the administrator at the nursing home where the defendant's mother resided. Although the plaintiff did not personally know the defendant prior to the incidents that resulted in the original harassment prevention order, she was aware of the strained relationship between the defendant and nursing home staff members under her direction. Further, a no trespass order issued to the defendant after he "turned his aggression at a nursing home resident."
On April 26, 2019, the defendant left the plaintiff a voicemail in which he sounded agitated and stated several times that he was "coming down [to the nursing home] right now." The defendant appeared at the nursing home about forty-five minutes later and "was swearing and screaming obscenities" at the plaintiff. A police officer witnessed the incident and escorted the defendant out of the building. The defendant continued to scream and swear as he was escorted out, and the officer eventually called for backup.
On May 23, 2019, the defendant picketed and distributed flyers outside the nursing home criticizing the plaintiff and the nursing home. The flyers contained the plaintiff's photograph and full name and accused her of being under investigation for abusing, neglecting, and causing the death of nursing home residents. About a week later, the plaintiff saw the same flyers "on all the telephone poles in [her] neighborhood." Following the discovery of the flyers, the plaintiff was "extremely worried for the physical safety of [herself] and [her] children," and applied for and was granted a harassment prevention order.
An extension hearing was held on June 7, 2019, at which the defendant was not present. At the hearing, the plaintiff testified that the defendant had continued to post derogatory statements about her on several places on the Internet. The plaintiff also testified that the defendant had "made new signs" that he was going "to use soon, probably outside [her] work." The judge extended the original harassment prevention order until June 5, 2020, and modified it, ordering the defendant "not to post pictures or comments about [the] plaintiff anywhere, including online or any public place."
The court concluded that the initial order (which contained the usual requirements to not abuse, threaten, or contact the plaintiff, to stay away from the plaintiff's home, and to stay 100 yards away from the plaintiff's work) was justified by the statute:
As relevant here, harassment is defined 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 [did] in fact cause fear, intimidation, abuse, or damage to property." "In the determination of whether the three acts 'did in fact cause fear, intimidation, abuse or damage to property,' it is 'the entire course of harassment, rather than each individual act, that must cause fear or intimidation.'"
A judge could have found, by a preponderance of the evidence, that the defendant committed three separate acts of harassment: (1) the voicemail; (2) the defendant's visit to the nursing home that ended with him being removed by police; and (3) the defendant learning where the plaintiff lived and going to her neighborhood.
In the context of the defendant's history of hostile behavior toward the nursing home staff and residents, a judge could have found that the voicemail the defendant left the plaintiff, stating that he would "come down [to the nursing home] right now," was a threat. The judge could have also found that the voicemail was designed to cause fear and that it did in fact cause the plaintiff fear. The act of coming to the nursing home and confronting the plaintiff was clearly an act which a judge could have found was malicious and intended to intimidate the plaintiff and to cause her fear….
Finally, the judge could have also found that the defendant posted flyers around the plaintiff's neighborhood, which, when viewed in the context of his previous threat and volatile and confrontational behavior at her place of work, was intended to cause the plaintiff fear. The judge could have permissibly found that, in light of the voicemail and the confrontation at the nursing home, this was another escalating act meant to intimidate and cause the plaintiff fear. Furthermore, the judge was permitted to credit the plaintiff's level of fear, which was described in her affidavit as "extremely worried for the physical safety of [herself] and [her] children."
But the revised harassment prevention order, "which added a prohibition on 'post[ing] pictures or comments about [the] plaintiff anywhere, including online or in any public place'" was unconstitutional, the appellate court held:
Instances of speech may not lawfully support a harassment prevention order unless they fall outside the protections of the First Amendment …, either because they are "fighting words" or "true threats." The judge modified the original harassment prevention order after the plaintiff testified that the defendant had continued to post derogatory statements about her on the Internet, and that the defendant had "made new signs" that he was going "to use soon, probably outside [her] work."
These actions, however troubling, do not rise to the level of fighting words or true threats. The defendant did not personally insult the plaintiff in a face-to-face interaction, and while the plaintiff may have sincerely feared the defendant, there is no evidence that the defendant intended these particular actions to cause the plaintiff fear of imminent physical harm. None of the defendant's online postings communicated a threat to commit an act of unlawful violence or an intent to place the plaintiff in fear of bodily harm. The defendant may well have intended to harm the plaintiff's reputation, but speech intended to cause "a fear of economic loss[ or] of unfavorable publicity" cannot be prohibited as civil harassment. Modifying the original harassment prevention order to account for these actions resulted in an order that covered protected speech.
Therefore, so much of the orders entered on June 7, 2019, and September 13, 2019, that prohibit the defendant from "post[ing] pictures or comments about [the] plaintiff anywhere, including online or in any public place" are vacated….