From K.B. v. D.O., determined at this time by the Massachusetts Appellate Court docket (in a nonprecedential opinion by Justices Vickie Henry, Andrew D’Angelo & Christopher Hodgens):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] bodily security” as a result of the defendant had posted “steady threats in the direction of [the plaintiff] on-line.” 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; “utilizing [the plaintiff’s] picture to slander authorities companies;” and stating that “she’s going to do no matter it takes to take [the plaintiff] down.” …
The plaintiff testified that the defendant’s actions triggered her to really feel “terrified, intimidated, fearful and anxious.” … The plaintiff additionally testified that the defendant posted an announcement that learn, “Nearer to her kids each single day. That should actually freak you out, [plaintiff]. You might be most likely wetting your self proper now.” Lastly, the plaintiff alleged that the defendant posted a information story about DCF misconduct, with a remark that the plaintiff was “most likely concerned.” [Based on this, the judge issued a harassment prevention order.] …
“[T]listed here are two layers of intent required to show civil harassment beneath c. 258E: the acts of harassment should be wil[l]ful and ‘[m]alicious,’ the latter outlined as ‘characterised by cruelty, hostility or revenge,’ and so they should be dedicated with ‘the intent to trigger worry, intimidation, abuse or injury to property.'” To stop chilling a defendant’s rights beneath the First Modification, that speech should represent “true threats” or “combating phrases” to qualify as an act of harassment…. “[T]he true threats can’t be threats to just do any type of hurt; they should be meant to trigger ‘worry of bodily hurt’ or … ‘bodily injury to property.'” …
Right here, the defendant didn’t ship any messages to the plaintiff or in any other case contact her straight, however as a substitute made the plaintiff the topic of Fb posts of which the plaintiff was made conscious by one other one who seen the posts. Based mostly on the plaintiff’s description of those posts, which the choose credited, they neither threatened bodily hurt towards the plaintiff nor injury to the plaintiff’s property.
The posts, as a substitute, appeared to focus on the plaintiff’s repute and trigger her emotional misery. The defendant’s posting of the husband’s obituary, for instance, doesn’t seem like a menace to trigger the plaintiff bodily hurt, however as a substitute to upset the plaintiff by highlighting her husband’s passing. Reposting this publicly obtainable data could also be distasteful and even contemptible; it isn’t a real menace beneath c. 258E.
As for the defendant’s posted assertion that she would “take [the plaintiff] down if it is the very 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 menace” beneath c. 258E…. “[I]nfavorable publicity … can’t be sufficient to make the menace a ‘true menace’ which may be prohibited as civil harassment[.]” … Nonetheless, even when a “true menace” 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 acknowledged the plaintiff was “most likely concerned” shouldn’t be a menace. This submit focused the plaintiff’s skilled repute, which doesn’t quantity to civil harassment beneath the statute.
The plaintiff additionally testified to a submit by the defendant which learn, “Nearer to her kids each single day. That should actually freak you out, [plaintiff]. You might be most likely wetting your self proper now.” Whereas it may very well be advised that by writing “her kids” the defendant was referring to the plaintiff’s kids, we predict 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 menace. Nonetheless, even when a real menace, that will be solely the second act of illegal harassment.
We acknowledge that this dispute has triggered each events important misery. Nonetheless, to make sure that courts usually are not improperly limiting freedom of speech, “the time period ‘harass’ has a selected definition on this context, derived from the statute and case regulation, a definition rather more exacting than widespread utilization.” As a result of the proof adduced on the listening to did not fulfill the brink necessities of G. L. c. 258E, § 1, the harassment prevention order mustn’t have issued and should be vacated….
