Kareem K. v. Ida I.
| Decision Date | 30 March 2022 |
| Docket Number | 21-P-687 |
| Parties | KAREEM K. v. IDA I. [1] |
| Court | Appeals Court of Massachusetts |
Harassment Prevention. Evidence, Threat. Libel and Slander. Constitutional Law, Freedom of speech and press.
Karen A. Pickett for the defendant.
James R. McMahon, III, for the plaintiff.
The defendant appeals from the extension of a harassment prevention order issued against her under G. L. c. 258E. She argues, among other things, that the extension order was predicated not on three qualifying acts of harassment, but on protected speech. We agree and thus vacate the extension order.
Background.
In the spring of 2021, the defendant and her husband sought legal advice from the plaintiff, an attorney. When the plaintiff later presented his findings, the defendant and her husband expressed displeasure with his work. The representation was then terminated.
On June 25, 2021, the plaintiff filed a complaint under G. L. c 258E, with a supporting affidavit, against the defendant only.[2] The affidavit, which we quote verbatim except where indicated, alleged the following acts of harassment: "[t]he defendants[3] were unhappy with our findings and proceeded to go on Facebook and make a public post calling us thiefs and making up things that did not happen"; "[t]hey then proceeded to call us three times on June 25th 2021"; "[t]hey proceeded to email our secr[e]tary . ., as well as copying multiple people on the email"; and "[the defendant's husband] then proceeded to send [the secretary] a [Facebook] message trying to speak with us."
The same day, the plaintiff appeared at an ex parte hearing in Leominster District Court. Elaborating little on his affidavit, the plaintiff claimed that the defendant committed three or more acts of harassment by "slandering [his] name" on Facebook, sending his secretary e-mail and Facebook messages, and making telephone calls to his office. When the judge asked whether the defendant made any personal threats, the plaintiff replied, "Not so much personal threats, . . . but knowing what I know and her history, ... I am in fear of this woman." When the judge next asked whether the plaintiff feared that the defendant would "physically harm" him or members of his staff, the plaintiff replied, "Definitely members of my staff." The judge issued a temporary c. 258E order based on this testimony and included the following provision: "No Internet or social media posts, comments or contact with the complaining witness or office staff." He then transferred the case to Worcester District Court, noting that the plaintiff "appear[ed] fairly regularly in this court."
On July 9, 2021, a judge of the Worcester District Court conducted an extension hearing by videoconference. The plaintiff appeared, but the defendant did not (she says because of lack of notice). The plaintiff again claimed that the defendant committed three or more acts of harassment by "slandering" him on social media and "harassing [his] staff through email, phone calls, as well as stalking them on social media." He further claimed that he "employ[ed] a lot of young ladies . . ., and they were extremely concerned for their safety." Based on this testimony, the judge extended the temporary c. 258E order for one year.
Discussion.
There is no basis in the record on which a c. 258E order could lawfully have issued. "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), quoting O'Brien v. Borowski, 461 Mass. 415, 425 (2012). Fighting words are not at issue here, and there is no evidence to support the plaintiff's claim that the defendant made a true threat, let alone three. A true threat must "communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." Virginia v. Black, 538 U.S. 343, 359 (2003) . Also, to support the issuance of a c. 258E order, the 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. 0'Brien, supra at 427 .
None of the communications identified by the plaintiff qualifies as a true threat, even attributing them all to the defendant, and even assuming, without deciding, that it was proper for the plaintiff to seek an order on behalf of his employees. The plaintiff claimed that the Facebook post was slanderous, not threatening. He offered no detail as to the content of the e-mail and social media messages, nor did he...
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