DocketNumber: 18-P-506
Citation Numbers: 123 N.E.3d 801, 94 Mass. App. Ct. 1121
Filed Date: 2/8/2019
Status: Precedential
Modified Date: 7/24/2022
The defendant appeals from her conviction, after a jury trial, of violating a harassment prevention order (HPO). G. L. c. 258E, § 9. She argues that there was insufficient evidence that she engaged in any harassment in violation of the HPO. We agree, and we therefore reverse the conviction, without reaching any of the numerous other issues she raises.
Background. Viewing the evidence in the light most favorable to the Commonwealth, see Commonwealth v. Latimore,
In January, 2015, P.C. became aware of a video posted on YouTube in which the defendant spoke to the camera about a conflict between herself and P.C., involving his children. The defendant suggested that the conflict had led P.C. to file false charges against her that would require a trial.
P.C. contacted local police to complain about the video. The police applied for and obtained issuance of a complaint charging the defendant with violating the HPO. At trial, the defendant admitted to having posted the video and calling DCF about P.C.'s treatment of his children, but she argued that the HPO could not prevent her from engaging in free speech. The jury returned a verdict of guilty.
Discussion. The defendant argues that the type of speech-based "harassment" that may be prohibited and punished under c. 258E is limited to two categories: "fighting words" and "true threats."
"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,
"To qualify as 'fighting words,' the words 'must be a direct personal insult addressed to a person, and they must be inherently likely to provoke violence.' "
"As for 'true threats,' these include 'direct threats of imminent physical harm,' as well as 'words or actions that -- taking into account the context in which they arise -- cause the victim to fear such [imminent physical] harm now or in the future.' " Van Liew,
The Commonwealth appears to contend that the defendant's speech, even if not "fighting words" or "true threats," constituted "intimidation" and therefore satisfied the c. 258E definition of "harassment." The Commonwealth argues that the jury could have found that the defendant's speech was intended to intimidate P.C. by putting him in fear of DCF intervention in his relationship with his children, in order to deter him from pursuing the charges he had filed against her. This misses the point of Van Liew: even if speech is intimidating and constitutionally unprotected, it is not necessarily "harassment" under c. 258E. Rather, the Legislature has "limit[ed] the categories of constitutionally unprotected speech that may qualify as 'harassment' to two: 'fighting words' and 'true threats.' " Van Liew,
The Commonwealth also argues that the defendant's violation consisted of "falsely reporting [P.C.] to DCF." But here there was no evidence that whatever the defendant reported to DCF (and there was no testimony as to her exact words) was actually false. The most the jury heard on this issue was that P.C. retained full custody of his children.
For those reasons, there was insufficient evidence of "harassment" to support the conviction.
Judgment reversed.
Verdict set aside.
Judgment for the defendant.
The jury were not informed of the nature of the charges.
At trial the department was referred to variously as DSS and DCF. For clarity, we will use only the acronym DCF.
The statute defines "harassment" in relevant part to mean "[three] or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property." G. L. c. 258E, § 1.