J.W. v. T.S.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

25-P-277

J.W.

vs.

T.S.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

What began as friendly social media conversations about

local politics between two people from Winthrop devolved into a

situation in which the plaintiff felt targeted by the

defendant's comments in his social media posts, private

messages, and text messages. On January 18, 2024, the plaintiff

applied for a harassment prevention order (c. 258E order),

pursuant to G. L. c. 258E, after her requests that the defendant

stop communicating with her went ignored. The judge did not

issue a c. 258E order at the ex parte hearing and continued the

case to February 21, 2024, for a two-party hearing. On February

21, 2024, the parties agreed to participate in mediation in lieu

of a two-party hearing. On March 7, 2024, the parties entered
into a written agreement to stay away and have no contact with

one another, and they agreed they would not post about each

other personally on social media.1 The parties presented the

agreement to the judge, who approved the agreement, and no

c. 258E order issued. While the mediation agreement seemingly

was effective in preventing contact between the parties for a

period of time, the defendant filed a motion to vacate the

mediation agreement because it did not specify an end date. On

February 5, 2025, the parties appeared for a hearing on the

defendant's motion to vacate, and the judge conducted an

evidentiary hearing to determine whether a c. 258E order should

issue. Both parties testified, and at the conclusion of the

hearing, the judge issued a c. 258E order against the defendant

for two years.

The defendant has appealed from the issuance of the c. 258E

order, arguing, among other things, that the plaintiff failed to

establish three qualifying acts of harassment and that the judge

erred by issuing the c. 258E order for two years. Because there

is insufficient basis in the record on which a c. 258E order

could have lawfully issued, we remand the case for entry of an

order vacating and setting aside the harassment prevention

order.

1 This agreement was later approved by a judge after
"inquiry."

2
Discussion. To obtain a harassment prevention order, a

plaintiff must demonstrate "harassment," which the statute

defines in relevant part as "[three] 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." G. L. c. 258E, § 1. In reviewing the issuance of

a harassment prevention order, "we consider whether the judge

could find, by a preponderance of the evidence, together with

all permissible inferences," that the defendant committed three

or more qualifying acts of harassment aimed at a specific

person. A.T. v. C.R., 88 Mass. App. Ct. 532, 535 (2015). No

specific findings are required if, after reviewing the record,

we can "discern a reasonable basis for the order in the judge's

rulings and order." G.B. v. C.A., 94 Mass. App. Ct. 389, 396

(2018). The plaintiff bears the burden of establishing that the

three acts were "maliciously intended," defined by the statute

as being "characterized by cruelty, hostility, or revenge."

A.T. v. C.R., 88 Mass. App. Ct. at 535. "The definition of

'harassment' in c. 258E was crafted by the Legislature to

'exclude constitutionally protected speech,' . . . and to limit

the categories of constitutionally unprotected speech that may

qualify as 'harassment' to two: 'fighting words' and 'true

threats.'" Van Liew v. Stansfield, 474 Mass. 31, 37 (2016),

3
quoting O'Brien v. Borowski, 461 Mass. 415, 425 (2012). See

Seney v. Morhy, 467 Mass. 58, 63 (2014) ("Conduct may constitute

civil harassment where an individual willfully and maliciously

uses 'fighting words' . . . or uses 'true threats'" [citation

omitted]). True threats have been defined as "words or actions

that -- taking into account the context in which they arise --

cause the victim to fear [physical] harm now or in the future

and evince intent on the part of the speaker or actor to cause

such fear." O'Brien, supra at 425. See A.R. v. L.C., 93 Mass.

App. Ct. 758, 760 (2018).

The defendant argues that there was insufficient evidence

for the judge to have found the defendant committed three

qualifying acts of harassment. The plaintiff's testimony at the

evidentiary hearing, which the judge credited, included her

testimony that in 2017 she and the defendant had "amicable

conversations about community issues" on social media and later

by text messages, e-mail messages, and telephone. However, in

the following year or two, the defendant began sending her

countless e-mail and text messages that contained offensive

language, insulting and ridiculing her about her positions on

bike lanes and transportation issues. One such instance

occurred in 2019, when the defendant disagreed with the

plaintiff's position on how best to address traffic issues in

the town. The plaintiff sent the defendant an e-mail message in

4
which she expressed her displeasure and frustration with the

defendant's communication style and what she believed was his

hostile tone toward her. The defendant replied with a

particularly caustic e-mail message response, leaving the

plaintiff feeling attacked and vulnerable.2

After a lull in communication between 2019 and 2022, the

defendant once again began to frequently send Facebook messages

to the plaintiff in the summer of 2022. At that point, the

plaintiff testified that the defendant's behavior escalated

despite her multiple requests that he refrain from contacting

her or speaking about her in public and even after she blocked

him from communicating with her on Facebook. The defendant

posted comments about her on a Facebook group called "Winthrop

Votes" in which he was the moderator, criticizing the plaintiff

on a variety of topics, including the plaintiff's support of a

certain candidate for political office and, in a different post,

ridiculing her for taking her infant child to an event

supporting bike lanes. The plaintiff testified that in October

2 The defendant's e-mail message to the plaintiff stated,
"GO FUCK YOURSELF!! You don't feel safe, I don't give a rat[']s
ass, I hope it motivates you to leave Winthrop. Like I said
before, people like you make me fucking sick. You think you do
no wrong and you think you know everything. Please go back to
the state of losers and stop trying to turn Massachusetts into
the shithole that California is." At the hearing, the defendant
acknowledged that his e-mail message response was not
respectful.

5
of 2023, during which time the defendant was publicly

criticizing the plaintiff's support of a bike lane in Winthrop,

the defendant parked his truck directly in front of her home,

even though there were open parking spaces elsewhere on the

street. In a January 2024 "Winthrop Votes" podcast, the

defendant focused his attention on the plaintiff, telling the

audience that he was "going after" the plaintiff and that she

was "about to be exposed." In November 2024, after the

plaintiff voted in a local election and exited a polling

location with her young child, the defendant was outside and

said "smells like shit" as she walked past.

At the conclusion of the hearing, the judge stated in oral

findings that there were "at least two" instances of harassment,

crediting "that one in '23, and I'm going to credit October

20th." We discern from the record that the first instance the

judge relied on was the October 2023 incident in which the judge

found that the defendant intentionally parked his car in front

of the plaintiff's home to send her a message that "he knows

where she lives" and for the purpose of intimidating her. While

it is unclear what specific instance of harassment the judge

credited from 2023, it appears to be the November 2024 incident

outside the polling station on election day. Even assuming,

without deciding, that these two instances qualify as harassment

when considered in the totality of the circumstances, we can

6
discern no evidence of a third qualifying act of harassment.

The defendant's manner of communicating with the plaintiff and

his use of social media to discuss her was undoubtedly rude,

offensive, and abrasive. On this record, however, the plaintiff

has not sustained her burden of proof to show that the

defendant's statements fall within the definition of true

threats as described in O'Brien. To support the issuance of a

c. 258E order, a true threat must be intended to cause "fear of

physical harm or fear of physical damage to property" and must

in fact cause such fear. O'Brien, 461 Mass. at 427.

At the hearing, the plaintiff agreed that the defendant

never physically harmed or threatened to physically harm her or

any member of her family. The defendant's statements, including

his statement to the plaintiff to "go fuck yourself," that he

did not care if she felt safe, and that he hoped that she would

move out of Winthrop -- troubling and offensive as they were --

failed to satisfy the threshold requirement of harassment as a

direct or indirect threat. Similarly, the defendant's

statements on his podcast that the plaintiff was "about to be

exposed," asking "why am I going after [the plaintiff]?" and

suggesting that others send the plaintiff a message that "the

guys on Winthrop Votes want to know who's lying," are not

sufficient to establish harassment. We have carefully reviewed

the entire record and conclude that none of the other statements

7
on the defendant's podcast or other social media comments

constitute harassment as defined under G. L. c. 258E, § 1.

Rather, they fall within the category of protected speech under

the First Amendment to the United States Constitution. Vacatur

of the c. 258E order in this case is required. Finally, we

reject the plaintiff's argument, unsupported by any authority,

that the mediation agreement approved by the judge in May 2024

amounted to or was the functional equivalent of a c. 258E order.

A harassment prevention order must comply with all of the

requirements set forth in G. L. c. 258E, § 3 (d), and must also

not "extend for a period exceeding 1 year." G. L. c. 258E,

§ 3 (d).

The case is remanded for the entry of an order vacating and

setting aside the harassment prevention order, and for further

actions required by G. L. c. 258E, § 9.

So ordered.

By the Court (Walsh, Toone &
Tan, JJ.3),

Clerk

Entered: February 3, 2026.

3 The panelists are listed in order of seniority.

8