Free Speech, Fighting Words, True Threats, and Massachusetts Harassment Prevention Orders

By Robert Nislick

A person suffering from harassment may file a complaint in a Massachusetts court requesting protection from such harassment. See G. L. c. 258E, § 3 (a). To do this, the plaintiff would generally go to the district court that has venue of the plaintiff’s residence. See G. L. c. 258E, § 2. At the court, the plaintiff will out forms including a Complaint for Protection From Harassment and an Affidavit.

In the affidavit, the plaintiff has to describe at least three separate incidents of harassment, in as much detail as possible. In the complaint, the plaintiff can ask for relief including that the defendant refrain from abusing, harassing, and contacting the plaintiff, and that the defendant stay away from the plaintiff’s household or workplace, and to pay the plaintiff monetary compensation for the losses suffered as a result of the harassment. See G. L. c. 258E, § 3 (a).

Suppose that someone is seeking a harassment prevention order against you. Your view is that you have not harassed the plaintiff. You read the complaint and affidavit and the allegations do not add up. Even if history shows that you do not like this person, and the feeling is mutual, a good argument can possibly be made that the plaintiff is not entitled to a harassment prevention order. If someone is seeking a harassment prevention order against you, it would be wise to hire an attorney to handle this matter.

The plaintiff may be complaining about conduct that simply does not count as “harassment”. The statute’s main definition of “harassment” requires, “3 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”. See G. L. c. 258E, § 1.

Under the leading Massachusetts case, the definition of harassment excludes constitutionally protected speech. See O’Brien v. Borowski, 461 Mass. 415, 425 (2012). Most speech is protected from government regulation by the First Amendment to the United States Constitution and article 16 of the Massachusetts Declaration of Rights. See id. at 422. However, certain classes of speech, specifically “fighting words” and “true threats” are not protected under the First Amendment.

“The ‘fighting words’ exception to the First Amendment is limited to words that are likely to provoke a fight: face-to-face personal insults that are so personally abusive that they are plainly likely to provoke a violent reaction and cause a breach of the peace.” Id. at 423.

“‘True threats’ encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. . . . The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats ‘protect[s] individuals from the fear of violence’ and ‘from the disruption that fear engenders,’ in addition to protecting people ‘from the possibility that the threatened violence will occur.’” O’Brien, 461 Mass. at 423.

The O’Brien Court engaged in an interesting discussion about whether raising the middle finger constitutes harassment. The Court cited several cases which say basically that swearing at and giving someone the finger, even a policeman, is entitled to First Amendment protection. On the other hand, the Court noted that in certain limited circumstances, when accompanied by more threatening conduct, raising the middle finger may constitute fighting words or a true threat.

If someone is seeking a harassment prevention order under G. L. c. 258E, or an abuse prevention order under G. L. c. 209A, against you, contact Robert Nislick, a Massachusetts lawyer based in Framingham, today to discuss your options. For additional insight, I also invite you to read Harassment Prevention Orders in Massachusetts, my first article in this series.

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