News + Insights from the Legal Team at Zalkind Duncan & Bernstein

Massachusetts Appeals Court affirms free speech restrictions on harassment prevention orders

In 2010 the Massachusetts legislature made a significant change in the law when it created harassment prevention orders, restraining orders that plaintiffs can seek to protect themselves against harassing behavior regardless of their relationship to the harasser.  (Before 2010, people seeking restraining orders in Massachusetts could receive protection only under an abuse prevention order, available only against abusers who are “family or household members” of the plaintiff seeking the order, a definition which includes anyone with whom the plaintiff has been in a serious dating relationship or with whom she has a child.)  Because the harassment prevention law is relatively new, the state courts are still refining when these orders are and are not available.  In the cases interpreting the law, it has become clear that the courts are struggling to strike a balance between protecting victims of real harassment from harm and unduly restricting free speech.

In a new decision issued this month in the case of Petriello v. Indresano, the Massachusetts Appeals Court has given courts considering whether to issue harassment prevention orders some important guidance, which should guide those seeking (or defending against) such orders going forward.  The plaintiff in the case was an elderly woman’s representative acting under a power of attorney, seeking a restraining order against members of her deceased husband’s family.  The plaintiff’s representative testified at the hearing, describing “constant . . . belittling, abuse.”  The elderly woman had to go to the hospital due to apparent distress related to this conduct, and an outside investigation substantiated allegations of elder abuse against her.  The district court issued a harassment protection order.

The Appeals Court reversed and vacated the order.  To issue a harassment prevention order, a court has to find at least three specific acts of harassment by the defendant.  In Petriello, the court reaffirmed that, as previously decided by the Massachusetts Supreme Judicial Court in O’Brien v. Borowski, for speech to qualify as an act of harassment, the speech must fall within a “constitutionally unprotected category,” such as so-called “fighting words” (words likely to provoke a fight) or “true threats” (words that communicate a serious expression of intent to commit unlawful violence).  Here, the Court found that many of the things that the defendants allegedly said, which the district court appears to have treated as acts of harassment, did not qualify.  The Court singled out, in particular, the fact that the defendants had accused the plaintiff of having had an abortion, as neither fighting words nor a threat.  Accordingly, the Court found that many of the allegations were not harassment because finding them to be harassment would have violated free speech principles.

Perhaps the most important lesson of Petriello for advocates, though, is that plaintiffs seeking harassment prevention orders must carefully lay a foundation demonstrating clearly that there are three incidents that do qualify as harassment.  The Appeals Court repeatedly noted in Petriello that the record was “very thin,” and full of “generalities and conclusions.”  In particular, the court noted that there was no testimony establishing which defendant or individual had taken many of the actions alleged, and that there was no evidence about what elder abuse the outside agency had found.  After Petriello, it should be clear that a plaintiff cannot simply come into court and state that he or she is being abused or harassed; in seeking a harassment prevention order, the plaintiff must present evidence of specific actions that the defendants took that qualify as harassment and not protected free speech.

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