The Child Abuse Investigator posts were not “harassment” that could be enjoined

From KB vs. DOdecided today by the Massachusetts Court of Appeals (in an unprecedented opinion by Justices Vickie Henry, Andrew D’Angelo and Christopher Hodgens):

The plaintiff is an investigator with the Department of Children and Families. Plaintiff investigated reports that defendant had abused or neglected her children. The plaintiff’s affidavit stated that she was “scared of [her] physical safety” because the accused had posted “constant threats towards [the plaintiff] online.” The threats alleged by the plaintiff included the defendant’s posting on social media of a photo of the plaintiff as a minor; the posting of the plaintiff’s husband’s obituary, which included the names of the plaintiff’s children; “using [the plaintiff’s] photos to defame government agencies;” and stating that “he will do whatever is necessary to undertake [the plaintiff] below.” …

The plaintiff testified that the defendant’s actions made her feel “terrified, intimidated, afraid, and anxious.” … The plaintiff also testified that the defendant posted a statement that said, “Every day closer to her children. This must really scare you, [plaintiff]. You’re probably pissing yourself right now.” Finally, the plaintiff alleged that the defendant had posted a 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 levels of intent required to prove civil harassment under c. 258E: acts of harassment must be voluntary[l]it’s full[m]alicious”, the latter defined as “characterized by cruelty, hostility or vindictiveness”, and must be committed with “the intent to cause fear, intimidation, abuse or damage to property”. , that speech must constitute “genuine threats” or ” fighting words” to qualify as an act of harassment….”[T]Real threats may not be threats to do any kind of harm; must be intended to cause ‘fear of physical harm’ or… ‘physical damage to property’.”…

In this case the defendant did not send any messages to the appellant or otherwise contact her directly, but instead made the appellant the subject of Facebook posts of which the appellant was informed by another person who viewed the post. Based on the plaintiff’s description of these posts, which the judge attributed, they did not threaten either physical harm to the plaintiff or damage to the plaintiff’s property.

The posts, however, appeared to target the plaintiff’s reputation and cause her emotional distress. The defendant’s publication of her husband’s obituary, for example, does not appear to be a threat to cause physical harm to the plaintiff, but rather to upset the plaintiff by highlighting her husband’s death. Republishing this publicly available information may be objectionable or even despicable; it is not a real threat within the meaning of c. 258E.

Regarding the defendant’s published statement that she “accepted [the plaintiff] down if it’s the last thing he does,” we view this as a promise to inflict reputational harm and not cause physical harm to the plaintiff. This does not qualify as a “genuine threat” under c. 258E….”[I]nfavorable publicity… may not be sufficient to make the threat a “real threat” that can be prohibited as civil nuisance[.]”…However, even if it were a ‘real threat’, it would only be an act of unlawful harassment [and the Massachusetts statute requires at least three acts to justify a harassment prevention order -EV]. Defendant’s published story about DCF misconduct in which she stated that plaintiff was “likely involved” is not a threat. This post was aimed at 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 that read, “Closer to his children every day. This must really scare you, [plaintiff]. You’re probably pissing yourself off right now.” While it might be suggested that by writing “her children” the defendant was referring to the plaintiff’s children, we find it more plausible that the defendant was referring to her own children, by whom she had apparently been separated following the DCF investigation of the plaintiff. As a result, this statement does not qualify as a true threat. However, even if a true threat, it would be only the second act of unlawful harassment.

We recognize that this dispute has caused significant difficulties for both parties. However, to ensure that courts do not improperly restrict free speech, “the term ‘harass’ has a specific definition in this context, derived from statute and case law, a much stricter definition than common usage.” Because the evidence presented at the hearing did not meet the minimum requirements of GL v. 258E, § 1, the harassment prevention order should not have been issued and must be quashed….

Gregory Hession represents the defendant.

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