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Free Speech

Criticizing Business on TikTok Can't Lead to Anti-Harassment Order, Even When Criticism …

leads some readers to engage in "threats and harassment" against the business.


From A.C. v. W.J., decided Monday by Justices Gabrielle Wolohojian, Sabita Singh & Kathryn Hand:

In reviewing a civil harassment order under G. L. c. 258E, we consider "whether a fact finder could conclude 'by a preponderance of the evidence, together with all permissible inferences, that the defendant had committed [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." Where, as here, the defendant's conduct involves speech, that speech must generally constitute "true threats" or "fighting words" to qualify as an act of civil harassment. "True threats" include "'direct threats of imminent physical harm,' as well as 'words or actions that—taking into account the context in which they arise—cause the victim to fear such [imminent physical] harm now or in the future.'" …

Here, the judge identified the first act of harassment as a December 8 phone call from W.J., where she said to A.C., "I'm going to light you up" after learning that her pottery pieces would not be delivered that evening. {The only one to give meaning to this ambiguous phrase was D.G., who testified that he took it to mean that W.J. would post a negative Google review. However, "[a] true threat does not require 'an explicit statement of an intention to harm the victim as long as circumstances support the victim's fearful or apprehensive response.'"} Assuming that this statement constituted an act of harassment under c. 258E, the only other instance of alleged direct conduct by W.J. that qualifies as harassment on this record is from a December 14 phone call, that A.C. testified she received from a caller who identified herself as W.J. and threatened to kill her. Such a threat, if credited, is clearly an act of harassment.

This leaves us to consider the question at the heart of this appeal: whether acts of harassment directed at A.C. by third parties in these circumstances can be attributed to W.J. to establish a third qualifying act within the purview of c. 258E. The answer is no.

It is undisputed that W.J.'s TikTok posts, in and of themselves, are protected speech. The judge below, however, did not base her ruling solely on the content of W.J.'s online posts. Rather, in attributing third-party conduct to W.J., she reasoned:

"that the volume and the timing of it creates more than a reasonable inference that this was a targeted attack on the plaintiff that was willful and malicious, and done with the intent to cause fear and intimidation and did in fact cause fear and intimidation."

{In explaining the basis for her ruling to defense counsel, the judge stated that she drew a "reasonable inference" that "there was this targeted effort for these people to cause [A.C.] [fear], through [W.J.] … through the timing of all this." When asked if W.J.'s TikTok posts constituted the predicate acts of harassment, the judge replied:

"No, I am not—I am not saying that the TikToks did it. I am saying that when you look at all of the circumstances and the reasonable inferences,—I'm not saying that the people just—the people didn't just come out of the blue and come in such huge anger and volume because of [W.J.'s negative Google review], it is way more than that. It's over the top what has actually happened on all of that, and because of that, I find there's a reasonable inference, and that's it."}

Put another way, the judge appears to have inferred that W.J., acting in concert with third parties, orchestrated the relentless campaign of threats and harassment by others directed at A.C. This is too great an inferential leap on this record…. [A] reasonable inference "must be based on probabilities rather than possibilities and cannot be the result of mere speculation and conjecture" …. W.J.'s posts did not contain any threats toward A.C. Nor did they contain speech explicitly, or implicitly, that could be understood to urge viewers to threaten her.

The only instructions W.J. issued—aside from a subtle recommendation for users to review preexisting negative online reviews of A.C.'s studio for some "light reading"—was in W.J.'s third TikTok post, where she asked viewers to not post false online reviews of A.C.'s pottery studio. W.J. first made this request in a pinned comment to one of her videos. Thereafter, she stated multiple times in her posts that she did not believe A.C., or members of her studio, deserved to be harassed. More to the point, there is no indication that W.J. directed third parties behind closed doors to threaten and harass A.C. See F.K. v. S.C. (Mass. 2019) (no indication that defendant directed third parties to notify plaintiff of threatening song lyrics; rather, the plaintiff was notified by third parties "acting of their own volition").

Finally, we address whether a fact finder could infer that W.J. posted her TikTok videos with the intent to incite third parties to harass and threaten A.C. See Commonwealth v. Johnson (Mass. 2014) ("Where the sole purpose of the defendants' speech was to further their endeavor to intentionally harass the [victims], such speech is not protected by the First Amendment"). Again, we conclude the answer is no.

As noted, when a case concerning a harassment prevention order under c. 258E "involves speech, it must fall 'within [a] constitutionally unprotected category of speech." Those categories have generally been limited "to two: 'fighting words' and 'true threats.'" Neither category readily applies in this case. However, a third category of unprotected speech is appropriate to consider in this case: speech integral to criminal conduct.

In Johnson, the Supreme Judicial Court held the evidence sufficient to support a conviction of harassment under G. L. c. 265, § 43A (a), where the defendants had created false advertisements on Craigslist, "luring numerous strangers and prompting incessant late-night telephone calls to [the victims'] home." The court deemed the defendants' speech to be "integral to criminal conduct," a "long-standing category [of speech] that is constitutionally unprotected." In its analysis, concluding in part that the "directed at" prong of the criminal harassment statute had been met, the court reasoned that "the Craigslist postings were the equivalent of the defendants recruiting others to harass the victims" and thus "[t]he causation link [was] satisfied."

Here, by contrast, too large of a causal gap exists between W.J.'s TikTok posts and the acts of third parties to evince the requisite intent and, in turn, remove W.J.'s posts from the realm of protected speech. See Tison v. Arizona (1987) ("[t]raditionally, 'one intends certain consequences when he desires that his acts cause those consequences or knows that those consequences are substantially certain to result from his acts'"). The record does not reflect that W.J. knew that third parties were harassing A.C. directly or threatening her with physical harm or damage to property when she posted her TikTok videos. While W.J. may have reasonably expected her TikTok posts to influence some viewers to steer clear of A.C's business, the evidence simply does not support that she intended third parties to harass or threaten A.C., and that she did so willfully and maliciously.

{It was not until W.J.'s fifth and final TikTok video that she described a discussion she had with the detective from the Boston Police Department, detailing some of the allegations against her, and shared images of the police report that A.C. had filed. The report contained a vague reference to A.C. receiving numerous threats online and on social media in regard to her business. The remaining allegations of threatening conduct contained in the police report appear to be alleged to have come directly from W.J.}

Rather, the third-party conduct at issue appears to have been the result of what began as relatively innocuous TikTok posts, made as part of a petty dispute between a business owner and a disgruntled customer, that subsequently "went viral" on social media and took on a life of their own. See United States v. Osinger (9th Cir. 2014) ("If a defendant is doing nothing but exercising a right of free speech, without engaging in any non-speech conduct, the exception for speech integral to criminal conduct shouldn't apply"). See also State v. Billings (Conn. App. 2022), and cases cited ("for the speech integral to criminal conduct exception to apply, the speech in question must, at a minimum, be integral to criminal conduct other than protected speech").

In short, because the evidence does not support that the defendant committed three acts of harassment within the meaning of c. 258E, the plaintiff has failed to meet her burden to sustain the issuance of a harassment prevention order….

Seems to be the correct result.