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Massachusetts Harassment Prevention Order Act, Free Speech, and Other Limitations

On Behalf of | Jul 7, 2023 | Firm News |

Massachusetts General Law Chapter 258E, also known as the Harassment Prevention Order Act, is a law that allows victims of harassment to obtain civil orders of protection from a court. Harassment is defined as three or more acts of willful and malicious conduct aimed at a specific person that causes fear, intimidation, abuse or damage to property. In the past, Judges applied the law when there existed a history of unwanted repetitive statements such as multiple phone calls, emails, texts, or social media messages. An example of this is the case of S.N. v. R.N. which was decided by the Massachusetts Appeals Court on May 16, 2023. In that case, the facts were that the defendant arrived at short notice at their elderly mother’s vacation home where he knew the plaintiff was staying, despite the mother having told him to stay away. The defendant also made repeated telephone calls to the mother at the vacation home, during which he made insulting comments about the mother and the plaintiff. The plaintiff further testified that the defendant disparaged her repeatedly in e-mails to and conversations with their siblings. Cases decided by the United States Supreme Court and Massachusetts Appeals Court in June 2023 establish that statements that are insulting, disparaging, and repetitive no longer within the scope of Harassment Protection Laws.

Counterman V. Colorado is a recent case decided by the U.S. Supreme Court held that a Colorado statute that prohibited any person from r]epeatedly . . . make[ ] any form of communication with another person” in “a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person . . . to suffer serious emotional distress.” The language of cause a reasonable person to suffer is what is known as an objective standard. It does not relate to what the speaker was thinking or why he made the statements. The Court held that this law violated the First Amendment because it didn’t require that the person intend for the statements to cause harm to the victim. The stated that in addition to an objective standard, there has to be a subjective standard. The First Amendment requires that the speaker, at a minimum, have a showing that a person “consciously disregard[ed] a substantial [and unjustifiable] risk that [his] conduct will cause harm to another, Thus laws that prohibit harassment speech must have both a subjective and objective component.

On the same day that the Supreme Court issued it’s decision in Counterman and the day after that, the Massachusetts Appellate Court issued three decisions on Harassment Protective orders that also prohibit repetitive conduct that is insulting, disparaging, and annoying due to the repetition. These cases make it clear that harassment protective orders will issue when the individual’s conduct constitutes a “true threat” of harm to the individual.

In one case, the Defendant had cropped photos from the Plaintiff’s Facebook account to create over twenty lewd images and a video of her, some of which “involved extremely sexual conduct.” He sent the photos to several of hers coworkers, and made numerous comments about her work and potentially reporting her because of her alleged incompetence. E.T. v. J.U. (Mass. App. Jun 28, 2023) The Appeals Court held that these reprehensible acts did not constitute threats of physical harm and therefore were not harassment within the scope of the statute.

In J.P. v. T.O. (Mass. App. Jun 27, 2023) the Defendant sent sexually graphic messages to Plaintiff’s classmates. As these messages were not sent to Plaintiff, the Court held that they did not constitute harassment within the scope of the statute. Any harassing communications must be sent to the Plaintiff. Sending communications to others that damage her reputation, harm her job, or embarrass a person are not within the scope of the statute.

These new cases interpret the law about harassment restraining orders to narrow the perceived conduct that can be the basis for a restraining order. A person who is the victim of repetitive conduct that is designed to annoy, embarrass, injure reputation, or harm a job should consult a lawyer to determine if such conduct can be the basis of a harassment restraining order or a domestic abuse restraining order. A lawyer may even recommend seeking a restraining order in equity which is entirely different but may be available when the others are not.

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