Massachusetts law gives people strong civil remedies to protect themselves from harassment and domestic abuse. The two main options are the Harassment Prevention Order under Chapter 258E and the Abuse Prevention Order under Chapter 209A. Both can restrict contact or communication between parties to prevent ongoing harm. However, the Courts have to apply these laws in a way that does not the constitutional right to free speech under the First Amendment and Article 16 of the Massachusetts Declaration of Rights.
Harassment and abuse orders cannot be based solely on speech that is unpleasant, critical, derogatory, or offensive. Courts must ensure that orders target conduct or speech that falls outside constitutional protection, such as threats, intimidation, or the nonconsensual distribution of sexual images.
A Harassment Prevention Order under Chapter 258E is intended to protect people from serious emotional harm caused by another’s repetitive conduct that is unwanted. To obtain an order, a petitioner must usually show at least three separate acts of harassment that caused substantial emotional distress and that the Defendant engaged in this behavior with the intent to annoy or harass and that this conduct was not otherwise protected by law.
Speech and conduct that is protected by the Constitution as free speech cannot form the basis for a harassment prevention order. However, not all speech is protected. There are narrow categories of unprotected speech—specifically:
- True threats – statements expressing a serious intent to commit violence or unlawful harm.
- Fighting words – direct personal insults likely to provoke immediate physical confrontation.
Speech integral to criminal conduct, such as extortion, stalking, or the nonconsensual distribution of sexual images.
The First Amendment protects even harsh, unpleasant, or offensive speech, including social media criticism, satire, or commentary about another person. The fact that speech causes distress or embarrassment is not enough to justify a court order. This protection extends to content published on the internet including social media.
The Abuse Prevention Order under Chapter 209A applies to family or household members and those in certain intimate relationships. Traditionally, it protected victims from physical abuse, threats, or fear of imminent serious physical harm. In 2024, the Legislature expanded the definition of “abuse” to include coercive control—a pattern of behavior that seeks to dominate or isolate a partner. Examples include controlling communications, monitoring activities, threatening to expose personal information, or destroying property. While this change helps address nonphysical abuse, it also raises free speech concerns. Because coercive control often involves words and communications, courts must distinguish between protected speech (such as criticism, arguments, or unpleasant exchanges) and speech used as a weapon of control or intimidation. If the conduct involves threats of physical harm, humiliation, or exposure of private or intimate material, it can fall outside free speech protection. But courts remain cautious not to punish mere expression or emotional conflict between partners.
Freedom of speech protects expressive art such as painting, creating photographs, dance, and movies. It is not limited to real photos but includes altered photos and even photos created by artificial intelligence. The growing misuse of social media and electronic images has blurred the line between protected expressive conduct and prohibited conduct. In some instances, the difference may be the lack of permission of the subject of the images.
Massachusetts now explicitly prohibits publishing or sharing sexually explicit or lewd images of another person without consent under G.L. c. 272, § 105. Courts also recognize that such conduct can justify civil protection through both Harassment Prevention Orders (258E) and Abuse Prevention Orders (209A). These recent changes in the law cannot violate the right to freedom of speech. Public commentary, criticism, or opinion—no matter how unpleasant—remain protected if it concerns matters of personal experience or opinion. Courts must avoid using harassment orders as tools for censorship. The purpose of Chapter 258E is to prevent serious harassment, not to punish expression or disagreement.
Conclusion
Massachusetts courts continue to refine the balance between protecting individuals from abuse and harassment and safeguarding the fundamental right to free expression. The law draws a clear distinction between communication that expresses emotion or opinion—which is protected—and conduct that threatens, intimidates, humiliates, or violates privacy—which is not.
Petitioners seeking protection should focus on behavior that demonstrates a clear pattern of intimidation, coercion, or threats, not simply speech that is unpleasant or upsetting. Respondents, on the other hand, should understand that while the First Amendment provides broad protection for expression, it does not excuse the misuse of speech or imagery to harm or control another person.
If you are considering seeking a Harassment Prevention Order or Abuse Prevention Order, or if someone has filed one against you, it is important to understand the limits of these laws and how constitutional free speech protections may affect your case.
Consulting an experienced Massachusetts attorney can help you determine whether your situation involves conduct that the courts will recognize as harassment or abuse—or whether it is protected by the First Amendment.
