Bad Facts, Bad Law: Appeals Court Ignores Free Speech in Upholding Anti-Harassment Order

We have previously covered on this blog the developing case law interpreting the Massachusetts law governing harassment prevention orders.  To recap, the statute allows an individual suffering from a pattern of “harassment,” meeting certain requirements, to obtain a restraining order against the harasser.  Because “harassment” could be a broad, almost limitless category, the Legislature defined it in the statute to include “3 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.”  The Supreme Judicial Court clarified in O’Brien v. Borowski that, not only does a plaintiff need to prove three acts, but where speech or expression is involved, it must be in a category deemed unprotected by the First Amendment, such as “fighting words” or “true threats.”

In the recent case of A.T. v. C.R., a majority of the Appeals Court focused on the unsavory facts of the case before it, and lost sight of the broader principles of the First Amendment.  In A.T., an eleven-year-old boy acted in a boorish and offensive manner towards one of his peers, an eleven-year-old girl.  The incidents at issue were the following:

1. While video-chatting, the boy commented on the girl’s “jugs of milk” (meaning her breasts).  A friend of his recorded a video of the conversation and sent it to her.
2. The boy told the girl that, if she showed the video to anyone, he would “make her life a living hell.”
3. In the school cafeteria, the boy described (or helped a friend describe) his sexual fantasy involving the girl, in which she was a pizza delivery girl.
4. Some time later, after he had withdrawn from the school, the boy approached the girl and said he wanted to “punch [her] in the titties.”

The majority in A.T. concluded that all of these incidents could be considered an act of harassment under the statute.  The majority concluded that, although “fear” (which was narrowed in O’Brien to mean only fear of bodily injury or property damage) did not apply, these acts could be considered “intimidation,” which the Supreme Judicial Court has not interpreted.  Although the majority did not explicitly adopt a definition of intimidation, it cited definitions from unrelated cases such as “to make timid or fearful,” or “putting in fear for the purpose of compelling or deterring conduct,” and rejected any requirement of fearing actual harm.  Having lowered the bar by circumventing the definition of “fear” in O’Brien, the majority (without much explanation) found intimidation in all four acts, noting that the second and fourth also qualified as “true threats.”

Two judges dissented.  They agreed that the fourth act was a threat of violence and therefore came within the statute, but disagreed as to all the others.  The dissent argued that the other acts (including the “jugs of milk” comment and public sexual comments) were offensive, but did not demonstrate an intent to place the girl in fear of actual harm.  The dissent also noted that the boy was acting in a juvenile fashion – but he was a juvenile – only eleven years old.

Interestingly given that all four acts consisted entirely of speech, neither the majority nor the dissent grapples with the free speech implications of the order.  Even assuming that the threat to punch the girl in the breasts was a “true threat,” and therefore not protected by the First Amendment, that is only one act, and at least three have to be shown.  The Supreme Court in Virginia v. Black defined true threats as “those 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.”  It is very dubious whether the threat to “make [the girl’s] life a living hell” should qualify as a true threat without evidence to show that it referred to “unlawful violence” and was intended to do so.

But the other two sexual comments, offensive though they might be, involve no threat of violence whatsoever.  The majority attempts to cast them as “intimidation,” but if that is illegal intimidation, so is trash-talking on the basketball court.  On the contrary, intimidating expression is unprotected by the First Amendment only if it is a true threat of violence, as were the Ku Klux Klan cross-burnings addressed by the Supreme Court in Black.  The majority’s approach permits speech to be punished simply because it offends and humiliates, which the First Amendment forbids.

If inappropriate sexual banter among adolescents in school justifies restraining orders, the courts will be too overwhelmed with displays of hormonal immaturity to hear the claims of those whom the law was intended to help.  Students engaged in such behavior should be taught respect and decorum, and disciplined by their schools if necessary.  But the courts should not, and under the First Amendment cannot, be drawn into the business of punishing whatever words a plaintiff considers hurtful.  One can only hope that this end run around freedom of speech will quickly be undone.