Boston Lawyer Blog

Supreme Court Clarifies Intent Standard For “Threats” In Stalking and Harassment Cases

Published on: August 15, 2023 | by Tom Miller

The Internet is the central forum in our society for expressing ideas. Many of us read or create countless public messages and posts each day on platforms like Facebook, Instagram, Twitter, or TikTok, in addition to private text messages or emails. This activity is generally protected by the First Amendment’s guarantee of freedom of speech. Yet even just a few words on a screen can be terrifying in the context of an abusive family or romantic relationship. Many restraining orders and even criminal charges are based, in whole or in part, on social media posts or electronic communications. What is the right balance between protecting free speech online and protecting victims of harassment and abuse?

Twenty years ago, in Virginia v. Black, the Supreme Court clarified that free speech protections do not apply to “true threats,” which it defined as “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.” Black involved a statute banning cross-burning. This past June, the Justices returned to the concept of “true threats” in the context of social media in its decision in Counterman v. Colorado. The ruling has complex implications for both victims and defendants in restraining order hearings and criminal cases involving harassing speech.

The Supreme Court’s Decision

In Latest Violence Against Women Act Reauthorization, Congress Created a Remedy for Victims of Revenge Porn

Published on: August 11, 2023 | by David Russcol

Over the last several years, it has become increasingly common to send or request nude or intimate images in the context of personal relationships. However, it is important that all parties to sexting and similar activities be consenting adults. (Sexual photos of minors under 18 are considered child pornography under state and federal law, much to the surprise of many teenagers.) If a former romantic partner, hacker, or other individual distributes such photos without consent, or threatens to do so, the subject of the photo is considered a victim of “sextortion” or “revenge porn.” Different states have adopted different approaches to these phenomena, and past proposed legislation in Massachusetts on this subject has not passed, leaving revenge porn victims with few options in this Commonwealth.

Justice Can’t Wait: Governor Healey Grants Seven Pardons and Recommends Modernization of the State’s Clemency Guidelines

Published on: July 21, 2023 | by Lucie Gulino

This is a follow up to a previous blog about clemency: you can read that post here.

Last month, Governor Maura Healey recommended seven individuals to the Governor’s Council for pardons and on July 19, 2023, the Governor’s Council unanimously voted in favor of all seven pardons. A pardon is complete forgiveness of the underlying convicted offense, which erases the crime from an individual’s criminal record. These pardons make Governor Healey the first Governor in Massachusetts in over thirty years to successfully grant pardons during her first year elected. These seven pardons also mark the highest number of pardons granted by a Massachusetts Governor in their first term in over forty years.

Rape, Defamation, and Title IX: Connecticut Supreme Court Holds Yale’s Lack of Procedural Protections Allows Defamation Claims Against Complainant to Go Forward

Published on: June 24, 2023 | by Naomi Shatz

When can a person accused of sexual misconduct sue the accuser for defamation? Since the #MeToo movement began, more and more people accused of sexual assault have turned to defamation lawsuits as a weapon to combat those allegations. In 2022 Johnny Depp won his defamation claim against his ex, Amber Heard, who had written an op-ed describing herself as a survivor of domestic violence, without naming Depp. (Depp was also found liable for defaming Heard when his lawyer called Heard’s claims a “hoax”). In 2020 a judge found singer Kesha had defamed her former music producer by telling a friend he had raped her; New York’s highest court recently overturned that decision, and the parties settled. A crowdsourced Google spreadsheet of allegations of sexual misconduct against men in media resulted in a lawsuit against the woman who started the spreadsheet, and a six-figure settlement for the plaintiff. Defamation claims in sexual assault cases have gone the other way too; A jury recently found that Donald Trump defamed E. Jean Carroll by calling her sexual assault allegations against him a hoax. In these high-profile instances, defamation suits have become a vehicle to set up a jury to decide whether allegations of sexual misconduct are true. CONTINUE READING ›

In Commonwealth v. JF, Supreme Judicial Court Makes Sealing Non-Convictions Easier

Published on: June 6, 2023 | by Lucie Gulino

Criminal records can have a devastating impact on access to life-affirming resources such as housing and employment. To address this issue, Massachusetts has steadily passed legislation that has made it easier for people to seal their records. My colleague has previously written about CORI reform law, including the 2018 legislation, and the Supreme Judicial Court (SJC) decision in Commonwealth v. Pon, which made it easier for people to seal their criminal records under M.G.L. c. 276, § 100C by laying out six factors for judges to evaluate whether there is “good cause” to seal the criminal records as discussed in our previous blog post.

Two New SJC Opinions Refine Long Decision on Suppressing Evidence from Racially-Motivated Stops

Published on: May 24, 2023 | by Tom Miller

Considerable data shows that police stop Black people in the U.S. much more frequently than white people. At least some of these stops are motivated by racial profiling, implicit or explicit, in violation of the constitutional guarantee of equal protection. But how, in practice, can a Black defendant establish that the stop in his or her case was racially motivated—and use this fact to defeat a criminal charge?

Supreme Judicial Court Requires Prosecutors to Prove Lack of License in Firearm Cases

Published on: April 25, 2023 | by David Russcol

Since its 2008 decision in Heller, the U.S. Supreme Court has been expanding the understanding of the constitutional right to bear arms under the Second Amendment. Heller held that the Second Amendment right is individual, and not limited to the context of an organized, “well-regulated militia.” In 2010, the Court held in McDonald that the right to bear arms applies to the states, not just against the federal government. Both Heller and McDonald addressed the context of keeping a firearm for self-defense in the home. But in the 2022 case of Bruen, the Supreme Court extended that right beyond the home, to include carrying a firearm in public, at least under some circumstances. State courts and legislatures are still grappling with the consequences of that decision.

Independent Contractor or Employee? What it Means and Why it Matters

Published on: April 19, 2023 | by Jennifer M. Herrmann

Employees have the benefit of a whole set of laws designed to protect them in the workplace. But what happens when an employer tells a worker that they are an independent contractor, or simply gives that worker a 1099? What you as a worker need to know is that whether you are an employee or an independent contractor doesn’t necessarily depend on what the employer says—it depends on the nature of the work you do.

Kluge v. Brownsburg Community School Corporation Caps off Week of Legal Developments on Transgender Rights

Published on: April 10, 2023 | by Naomi Shatz

Last week saw a wave of legal developments—legislative, jurisprudential, and administrative—on issues related to trans rights. While state legislatures passed laws restricting medical care for transgender minors, and barring trans women and girls from participating in school sports, federal appellate courts upheld the rights of transgender students and the Biden administration weighed in on the trans athlete issue. On April 6 the Supreme Court refused to lift a ban imposed by the Fourth Circuit on the enforcement of a West Virginia law that would prevent transgender students from competing on sports teams that corresponded to their gender while litigation about the constitutionality of the law is pending. West Virginia was attempting to enforce that law against a 12-year-old girl who wanted to run track at her middle school. That same day the U.S. Department of Education released a proposed rule that would address transgender students’ athletic participation. That rule, however, far from protecting trans students’ right to be treated equally to other members of their gender, would only prohibit a school from imposing a blanket ban on students’ participation in sports that corresponded to their genders. Schools would retain the authority to restrict trans athletes’ participation in sports if they could show that the restriction is “substantially related to the achievement of an important educational objective and (ii) minimize[s] harms to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied.”

The Supreme Judicial Court Must Clarify What Evidence Plaintiffs Need to Present to Have Discrimination Cases Heard by a Jury

Published on: April 4, 2023 | by Lucie Gulino

Earlier this month, the Massachusetts Supreme Judicial Court (SJC), heard oral arguments for Mark A. Adams v. Schneider Electric USA, Inc., an age discrimination lawsuit in which Monica Shah and I filed an amicus brief in support of Adams, on behalf of the Massachusetts Employment Lawyers Association.

The Facts

Adams worked as an electrical engineer at Schneider Electric in Andover, Massachusetts from 2007 to 2017. On January 27, 2017, as part of a reduction-in-force (RIF), Schneider Electric laid off Adams, who was 54 years old at the time. As part of this RIF, Schneider Electric laid off seven other employees, all of whom were over 55 years old. There were two other RIFs at Schneider Electric within a year of Adams’ termination and of the 24 employees laid off, 23 of them were 44 years or older. Adams had strong performance reviews throughout his employment with Schneider Electric and when one of his direct supervisors discovered he was terminated, the supervisor asked for Schneider Electric to bring Adams back because Adams’ absence threatened the success of one of the supervisor’s projects; Schneider Electric declined to re-hire Adams. While Schneider Electric maintains that Adams’ termination of employment had nothing to do with his age and the person who fired Adams acted alone without influence from others at the company, Adams argues that there are several factors surrounding his termination that suggest he was discriminated against because of his age, including a Human Resources employee instructing the decision-maker who fired Adams to consider age when selecting candidates to terminate for the RIF. In addition, there was voluminous e-mail documentation between Schneider Electric employees discussing restructuring tactics that included letting go of older employees to make room for a younger workforce.