K.B. v. D.O.

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

23-P-291

K.B.

vs.

D.O.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, D.O., appeals from an order of the District

Court dated September 22, 2022, extending a harassment

prevention order issued pursuant to G. L. c. 258E. Because we

cannot identify three acts of harassment on this record, we

vacate the order and remand.

Background. On September 7, 2022, the plaintiff applied

for an ex parte harassment prevention order against the

defendant pursuant to G. L. c. 258E. The plaintiff is an

investigator for the Department of Children and Families. The

plaintiff investigated reports that the defendant had abused or

neglected her children. The plaintiff's affidavit asserted that

she was "scared for [her] physical safety" because the defendant

had posted "continuous threats towards [the plaintiff] online."

The threats the plaintiff alleged included the defendant posting
on social media a picture of the plaintiff as a juvenile;

posting the plaintiff's husband's obituary, which included the

names of the plaintiff's children; "using [the plaintiff's]

photo to slander government agencies;" and stating that "she

will do whatever it takes to take [the plaintiff] down." The

judge issued the ex parte order and a two-party hearing was

scheduled for September 22, 2022.

At the hearing, both the plaintiff and the defendant were

present. Neither party was represented by counsel. The

plaintiff testified that the defendant's actions caused her to

feel "terrified, intimidated, fearful and anxious." She

reiterated several of her complaints about the defendant's

social media posts, which included the plaintiff's husband's

obituary, a photo of the plaintiff as a minor, and a statement

that the defendant would "take [the plaintiff] down if it's the

last thing she does." The plaintiff also testified that the

defendant posted a statement that read, "Closer to her children

every single day. That must really freak you out, [plaintiff].

You are probably wetting yourself right now." Finally, the

plaintiff alleged that the defendant posted a news story about

DCF misconduct, with a comment that the plaintiff was "probably

involved."

The defendant argued that her social media posts were not

proper grounds for a harassment prevention order because they

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were neither "true threat[s]" nor "fighting words" and instead

amounted to "First Amendment protected speech." As context for

her statements, she testified that the plaintiff had damaged her

family life with an illegitimate and discriminatory DCF

investigation that wrongly caused the defendant to be separated

from her children.

The judge credited the plaintiff's testimony as to the

content of the defendant's social media posts. He found that

the plaintiff had demonstrated "a substantial likelihood of

immediate danger of abuse" and that "there has been testimony

pertaining to three or more acts aimed specifically by [the

defendant] at [the plaintiff]." The judge did not identify

which three acts he found qualified as unlawful harassment. The

judge extended the harassment prevent order, which was in effect

until September 21, 2023. The defendant appealed the order to

this court.

Discussion. The defendant argues that the District Court

judge abused his discretion by extending the harassment

prevention order when there was insufficient evidence that the

defendant made "true threats" against the plaintiff, and that

there were not three incidents of harassment against the

plaintiff, as the statute requires. "[T]here are two layers of

intent required to prove civil harassment under c. 258E: the

acts of harassment must be wil[l]ful and '[m]alicious,' the

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latter defined as 'characterized by cruelty, hostility or

revenge,' and they must be committed with 'the intent to cause

fear, intimidation, abuse or damage to property.'" O'Brien v.

Borowksi, 461 Mass. 415, 420 (2012), quoting G. L. c. 258E, § 1.

To prevent chilling a defendant's rights under the First

Amendment, that speech must constitute "true threats" or

"fighting words" to qualify as an act of harassment. Seney v.

Morhy, 467 Mass. 58, 63 (2014). "[T]he 'true threat' doctrine

applies . . . [both] to direct threats of imminent physical

harm, [and] to words or actions that -- taking into account the

context in which they arise -- cause the victim to fear such

harm now or in the future and evince intent on the part of the

speaker or actor to cause such fear." O'Brien, 461 Mass. at

425. "[T]he true threats cannot be threats to do just any kind

of harm; they must be intended to cause 'fear of physical harm'

or . . . 'physical damage to property.'" A.R. v. L.C., 93 Mass.

App. Ct. 758, 760 (2018), quoting O'Brien, supra at 427.

Because the judge did not identify which of the defendant's

actions constituted three acts of harassment, we review the

entirety of the record.

Here, the defendant did not send any messages to the

plaintiff or otherwise contact her directly, but instead made

the plaintiff the subject of Facebook posts of which the

plaintiff was made aware by another person who viewed the posts.

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Based on the plaintiff's description of these posts, which the

judge credited, they neither threatened physical harm toward the

plaintiff nor damage to the plaintiff's property.

The posts, instead, appeared to target the plaintiff's

reputation and cause her emotional distress. The defendant's

posting of the husband's obituary, for example, does not appear

to be a threat to cause the plaintiff physical harm, but instead

to upset the plaintiff by highlighting her husband's passing.

Reposting this publicly available information may be distasteful

or even contemptible; it is not a true threat under c. 258E.

As for the defendant's posted statement that she would

"take [the plaintiff] down if it's the last thing she does," we

view this as a promise to inflict reputational damage and not

cause physical harm to the plaintiff. This does not qualify as

a "true threat" under c. 258E. O'Brien, supra at 427

("unfavorable publicity . . . cannot be enough to make the

threat a 'true threat' that may be prohibited as civil

harassment"). However, even if a "true threat" that would only

be one act of unlawful harassment. The news story the defendant

posted about DCF misconduct with which she stated the plaintiff

was "probably involved" is not a threat. This post targeted the

plaintiff's professional reputation, which does not amount to

civil harassment under the statute.

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The plaintiff also testified to a post by the defendant

which read, "Closer to her children every single day. That must

really freak you out, [plaintiff]. You are probably wetting

yourself right now." While it could be suggested that by

writing "her children" the defendant was referring to the

plaintiff's children, we think it more plausible that the

defendant was referencing her own children, from whom she had

apparently been separated as a result of the plaintiff's DCF

investigation. Accordingly, this statement does not qualify as

a true threat. However, even if a true threat, that would be

only the second act of unlawful harassment.

We recognize that this dispute has caused both parties

significant distress. However, to ensure that courts are not

improperly restricting freedom of speech, "the term 'harass' has

a specific definition in this context, derived from the statute

and case law, a definition much more exacting than common

usage." Gassman v. Reason, 90 Mass. App. Ct. 1, 8 (2016).

Because the evidence adduced at the hearing failed to satisfy

the threshold requirements of G. L. c. 258E, § 1, the harassment

prevention order should not have issued and must be vacated.

Moreover, "if a judge vacates a harassment prevention order, law

enforcement officials shall destroy 'all record' concerning such

order." Seney, 467 Mass. at 60-61, quoting G. L. c. 258E, § 9.

The order dated September 22, 2022, is vacated, and the case is

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remanded for further actions as required by G. L. c. 258E, § 9.

See F.K. v. S.C., 481 Mass. 325, 335 (2019).

So ordered.

By the Court (Henry,
D'Angelo & Hodgens, JJ.1),

Assistant Clerk

Entered: February 15, 2024.

1 The panelists are listed in order of seniority.

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