From yesterday’s pseudonymized choice in Kareem Okay. v. Ida I. (handed down by Justices Ariane Vuono, Sookyoung Shin, and Sabita Singh):
Within the spring of 2021, the defendant and her husband sought authorized recommendation from the plaintiff, an legal professional. When the plaintiff later introduced his findings, the defendant and her husband expressed displeasure along with his work. The illustration was then terminated.
On June 25, 2021, the plaintiff filed a criticism underneath G. L. c. 258E [the harassment restraining order statute] … in opposition to the defendant solely. The affidavit, which we quote verbatim besides the place indicated, alleged the next acts of harassment: “[t]he defendants had been sad with our findings and proceeded to go on Fb and make a public publish calling us thiefs and making up issues that didn’t occur”; “[t]hey then proceeded to name us thrice on June twenty fifth, 2021”; “[t]hey proceeded to e-mail our secr[e]tary …, in addition to copying a number of folks on the e-mail”; and “[the defendant’s husband] then proceeded to ship [the secretary] a [Facebook] message making an attempt to talk with us.”
The identical day, the plaintiff appeared at an ex parte listening to in Leominster District Court docket. Elaborating little on his affidavit, the plaintiff claimed that the defendant dedicated three or extra acts of harassment by “slandering [his] title” on Fb, sending his secretary e-mail and Fb messages, and making phone calls to his workplace. When the decide requested whether or not the defendant made any private threats, the plaintiff replied, “Not a lot private threats, … however figuring out what I do know and her historical past, … I’m in worry of this lady.” When the decide subsequent requested whether or not the plaintiff feared that the defendant would “bodily hurt” him or members of his workers, the plaintiff replied, “Positively members of my workers.”
The decide issued a brief c. 258E order based mostly on this testimony and included the next provision: “No Web or social media posts, feedback or contact with the complaining witness or workplace workers.” … [At a later hearing, t]he plaintiff once more claimed that the defendant dedicated three or extra acts of harassment by “slandering” him on social media and “harassing [his] workers by way of e-mail, telephone calls, in addition to stalking them on social media.” … Primarily based on this testimony, the decide prolonged the short-term c. 258E order for one 12 months.
Impermissible, stated the court docket:
There isn’t any foundation within the file on which a c. 258E order may lawfully have issued. “The definition of ‘harassment’ in c. 258E was crafted by the Legislature to ‘exclude constitutionally protected speech,’ … and to restrict the classes of constitutionally unprotected speech which will qualify as ‘harassment’ to 2: ‘preventing phrases’ and ‘true threats.'” Preventing phrases aren’t at difficulty right here, and there’s no proof to assist the plaintiff’s declare that the defendant made a real risk, not to mention three. A real risk should “talk a severe expression of an intent to commit an act of illegal violence to a selected particular person or group of people.” Additionally, to assist the issuance of a c. 258E order, the true risk should be meant to trigger “worry of bodily hurt or worry of bodily harm to property” and should in actual fact trigger such worry.
Not one of the communications recognized by the plaintiff qualifies as a real risk, even attributing all of them to the defendant, and even assuming, with out deciding, that it was correct for the plaintiff to hunt an order on behalf of his workers. The plaintiff claimed that the Fb publish was slanderous, not threatening. He provided no element as to the content material of the e-mail and social media messages, nor did he describe what the defendant stated when she referred to as his workplace. Moreover, the plaintiff admitted on the ex parte listening to that the defendant had not made any threats.
We take this chance to reiterate that, the place a c. 258E order is sought on the premise of speech alone, the plaintiff should show that the speech rose to the extent of true threats or preventing phrases and never merely that it was “harassing, intimidating, or abusive within the colloquial sense.” Right here, if the plaintiff believed that the defendant defamed him, the right car for redress was not c. 258E, however an motion for defamation. Nor was it correct for the plaintiff to make use of c. 258E as a method of stopping a former shopper from contacting his workplace about a difficulty associated to his illustration.
We word additionally that, even had the plaintiff proved three qualifying acts, it’s uncertain that the scope of the extension order—which seems to bar the defendant from making Web or social media posts that reference the plaintiff in any approach—may go constitutional scrutiny…. “[A]ny limitation on protected expression should be no better than is critical to guard the compelling curiosity that’s asserted as a justification for the restraint” …. In mild of our ruling, nonetheless, we want not resolve that difficulty or the defendant’s different arguments.
The case is remanded to the District Court docket for entry of an order vacating and setting apart the extension order and for additional actions required by G. L. c. 258E, § 9.
Congratulations to Marc Randazza and Jay Wolman (who had been on the briefs, however withdrew earlier than oral argument) and Karen Pickett on profitable the case.