Harassment Restraining Order Stemming from Dispute Among Local Political Figures Vacated on Appeal

From J.W. v. T.S., decided Tuesday by Massachusetts Appeals Court Judges Justices Maureen Walsh, Robert Toone & Gloria Tan. The plaintiff appears to be Julia Prange Wallerce, who had been on the Winthrop Planning Board and the Winthrop Transportation Advisory Committee and had been Assistant Director of Transportation at the Metropolitan Area Planning Council, and the defendant appears to be Todd Sacco, who had run for the Winthrop City Council in 2023:

What began as friendly social media conversations about local politics between two people from Winthrop devolved into a situation in which the plaintiff felt targeted by the defendant's comments in his social media posts, private messages, and text messages. On January 18, 2024, the plaintiff applied for a harassment prevention order (c. 258E order), pursuant to G. L. c. 258E, after her requests that the defendant stop communicating with her went ignored….

To obtain a harassment prevention order, a plaintiff must demonstrate "harassment," which the statute defines in relevant part 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 does in fact cause fear, intimidation, abuse or damage to property." In reviewing the issuance of a harassment prevention order, "we consider whether the judge could find, by a preponderance of the evidence, together with all permissible inferences," that the defendant committed three or more qualifying acts of harassment aimed at a specific person…. The plaintiff bears the burden of establishing that the three acts were "maliciously intended," defined by the statute as being "characterized by cruelty, hostility, or revenge."

"The definition of 'harassment' in c. 258E was crafted by the Legislature to 'exclude constitutionally protected speech,' … and to limit the categories of constitutionally unprotected speech that may qualify as 'harassment' to two: 'fighting words' and 'true threats.'" True threats have been defined as "words or actions that—taking into account the context in which they arise—cause the victim to fear [physical] harm now or in the future and evince intent on the part of the speaker or actor to cause such fear." …

The plaintiff's testimony at the evidentiary hearing, which the judge credited, included her testimony that in 2017 she and the defendant had "amicable conversations about community issues" on social media and later by text messages, e-mail messages, and telephone. However, in the following year or two, the defendant began sending her countless e-mail and text messages that contained offensive language, insulting and ridiculing her about her positions on bike lanes and transportation issues.

One such instance occurred in 2019, when the defendant disagreed with the plaintiff's position on how best to address traffic issues in the town. The plaintiff sent the defendant an e-mail message in which she expressed her displeasure and frustration with the defendant's communication style and what she believed was his hostile tone toward her.

The defendant replied with a particularly caustic e-mail message response, leaving the plaintiff feeling attacked and vulnerable. {The defendant's e-mail message to the plaintiff stated, "GO FUCK YOURSELF!! You don't feel safe, I don't give a rat[']s ass, I hope it motivates you to leave Winthrop. Like I said before, people like you make me fucking sick. You think you do no wrong and you think you know everything. Please go back to the state of losers and stop trying to turn Massachusetts into the shithole that California is." At the hearing, the defendant acknowledged that his e-mail message response was not respectful.}

After a lull in communication between 2019 and 2022, the defendant once again began to frequently send Facebook messages to the plaintiff in the summer of 2022. At that point, the plaintiff testified that the defendant's behavior escalated despite her multiple requests that he refrain from contacting her or speaking about her in public and even after she blocked him from communicating with her on Facebook. The defendant posted comments about her on a Facebook group called "Winthrop Votes" in which he was the moderator, criticizing the plaintiff on a variety of topics, including the plaintiff's support of a certain candidate for political office and, in a different post, ridiculing her for taking her infant child to an event supporting bike lanes.

The plaintiff testified that in October of 2023, during which time the defendant was publicly criticizing the plaintiff's support of a bike lane in Winthrop, the defendant parked his truck directly in front of her home, even though there were open parking spaces elsewhere on the street. In a January 2024 "Winthrop Votes" podcast, the defendant focused his attention on the plaintiff, telling the audience that he was "going after" the plaintiff and that she was "about to be exposed." In November 2024, after the plaintiff voted in a local election and exited a polling location with her young child, the defendant was outside and said "smells like shit" as she walked past.

At the conclusion of the hearing, the judge stated in oral findings that there were "at least two" instances of harassment, crediting "that one in '23, and I'm going to credit October 20th." We discern from the record that the first instance the judge relied on was the October 2023 incident in which the judge found that the defendant intentionally parked his car in front of the plaintiff's home to send her a message that "he knows where she lives" and for the purpose of intimidating her. While it is unclear what specific instance of harassment the judge credited from 2023, it appears to be the November 2024 incident outside the polling station on election day.

Even assuming, without deciding, that these two instances qualify as harassment when considered in the totality of the circumstances, we can discern no evidence of a third qualifying act of harassment. The defendant's manner of communicating with the plaintiff and his use of social media to discuss her was undoubtedly rude, offensive, and abrasive. On this record, however, the plaintiff has not sustained her burden of proof to show that the defendant's statements fall within the definition of true threats …. To support the issuance of a c. 258E order, a true threat must be intended to cause "fear of physical harm or fear of physical damage to property" and must in fact cause such fear.

At the hearing, the plaintiff agreed that the defendant never physically harmed or threatened to physically harm her or any member of her family. The defendant's statements, including his statement to the plaintiff to "go fuck yourself," that he did not care if she felt safe, and that he hoped that she would move out of Winthrop—troubling and offensive as they were—failed to satisfy the threshold requirement of harassment as a direct or indirect threat. Similarly, the defendant's statements on his podcast that the plaintiff was "about to be exposed," asking "why am I going after [the plaintiff]?" and suggesting that others send the plaintiff a message that "the guys on Winthrop Votes want to know who's lying," are not sufficient to establish harassment. We have carefully reviewed the entire record and conclude that none of the other statements on the defendant's podcast or other social media comments constitute harassment as defined under Rather, they fall within the category of protected speech under the First Amendment ….

Philip Weber represents T.S.