The Volokh Conspiracy
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Posts About Child Abuse Investigator Weren't "Harassment" That Could Be Enjoined
Among other things, posts that "target the plaintiff's reputation and cause her emotional distress" aren't covered by the Massachusetts harassment prevention order statute.
From K.B. v. D.O., decided today by the Massachusetts Appellate Court (in a nonprecedential opinion by Justices Vickie Henry, Andrew D'Angelo & Christopher Hodgens):
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 plaintiff testified that the defendant's actions caused her to feel "terrified, intimidated, fearful and anxious." … 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." [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 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…. "[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.'" …
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. 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…. "[I]nfavorable 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 [and the Massachusetts statute requires at least three acts to justify a harassment prevention order -EV]. 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.
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." 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….
Gregory Hession represents defendant.
