A.C. v. W.J.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties

and, therefore, may not fully address the facts of the case or the panel's

decisional rationale. Moreover, such decisions are not circulated to the entire

court and, therefore, represent only the views of the panel that decided the case.

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,

2008, may be cited for its persuasive value but, because of the limitations noted

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-596

A.C.

vs.

W.J.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, W.J., appeals from a harassment prevention

order issued against her pursuant to G. L. c. 258E. 1 She

contends that a Boston Municipal Court judge erred in issuing

the order because the plaintiff, A.C., did not present

sufficient evidence of three acts of "harassment," as required

under the statute. Specifically, she contends that (1) her

online TikTok posts were protected speech, and (2) that she

cannot be held responsible for the harassing conduct of third

parties in these circumstances. We agree and vacate the order.

1 The order entered after a hearing on May 2, 2022, and was set

to expire on May 2, 2023. We were informed at oral argument

that the order had expired by its terms and was not extended.

The matter remains properly before us. See Seney v. Morhy, 467

Mass. 58, 62 (2014).

Discussion. In reviewing a civil harassment order under

G. L. c. 258E, we consider "whether a fact finder could conclude

'by a preponderance of the evidence, together with all

permissible inferences, that the defendant had committed [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 [did] in fact

cause fear, intimidation, abuse or damage to property" (citation

omitted). 2 R.S. v. A.P.B., 95 Mass. App. Ct. 372, 375 (2019).

See G. L. c. 258E, § 1. Where, as here, the defendant's conduct

involves speech, that speech must generally constitute "true

threats" or "fighting words" to qualify as an act of civil

harassment. 3 See Van Liew v. Stansfield, 474 Mass. 31, 37

(2016); Seney v. Morhy, 467 Mass. 58, 63 (2014). "True threats"

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

2 In determining whether the three acts "did 'in fact cause fear,

intimidation, abuse or damage to property,'" it is "the entire

course of harassment, rather than each individual act, that must

cause fear or intimidation." O'Brien v. Borowski, 461 Mass.

415, 426 n.8 (2012).

3 "Fighting words" are not at issue in this appeal. See Van

Liew, 474 Mass. at 37 ("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'" [citation

omitted]).

2

physical] harm now or in the future'" (citation omitted). Van

Liew, supra at 37. Whether speech "constitutes . . . a true

threat is a matter to be decided by the trier of fact" (citation

omitted). A.S.R. v. A.K.A., 92 Mass. App. Ct. 270, 278 (2017).

It is the plaintiff's burden to prove each of the three acts of

harassment. V.J. v. N.J., 91 Mass. App. Ct. 22, 25 (2017). "We

review the judge's factual findings for clear error." Ilan I.

v. Melody M., 96 Mass. App. Ct. 639, 645 n.9 (2019).

Here, the judge identified the first act of harassment as a

December 8 phone call from W.J., where she said to A.C., "I'm

going to light you up" after learning that her pottery pieces

would not be delivered that evening. Assuming that this

statement constituted an act of harassment under c. 258E, 4 the

only other instance of alleged direct conduct by W.J. that

qualifies as harassment on this record is from a December 14

phone call, that A.C. testified she received from a caller who

identified herself as W.J. and threatened to kill her. 5 Such a

4 The only one to give meaning to this ambiguous phrase was D.G.,

who testified that he took it to mean that W.J. would post a

negative Google review. However, "[a] true threat does not

require 'an explicit statement of an intention to harm the

victim as long as circumstances support the victim's fearful or

apprehensive response'" (citation omitted). A.T. v. C.R., 88

Mass. App. Ct. 532, 536 (2015).

5 A.C. testified that the caller from an unknown number not only

identified herself as W.J., but also sounded as if she was her.

3

threat, if credited, 6 is clearly an act of harassment. This

leaves us to consider the question at the heart of this appeal:

whether acts of harassment directed at A.C. by third parties in

these circumstances can be attributed to W.J. to establish a

third qualifying act within the purview of c. 258E. The answer

is no.

It is undisputed that W.J.'s TikTok 7 posts, in and of

themselves, are protected speech. See Packingham v. North

Carolina, 582 U.S. 98, 105 (2017) ("social media users employ

these websites to engage in a wide array of protected First

Amendment activity on topics 'as diverse as human thought'"

[citation omitted]). The judge below, however, did not base her

ruling solely on the content of W.J.'s online posts. 8 Rather, in

attributing third-party conduct to W.J., she reasoned:

6 While not explicitly referenced in her oral findings, the judge

referenced the December 14 phone call during a colloquy with

A.C. at the May 2 hearing, stating, "I see one incident [of

harassment] being the one where you testified one phone call

where she . . . said things like she was going to, you know,

kill your family or things like that."

7 "TikTok 'is a short-loop video sharing [application] presently

used by over 100 million Americans" (citation omitted).

Commonwealth v. Qasim Q., 491 Mass. 650, 651 n.2 (2023).

8 In explaining the basis for her ruling to defense counsel, the

judge stated that she drew a "reasonable inference" that "there

was this targeted effort for these people to cause [A.C.]

[fear], through [W.J.] . . . through the timing of all this."

When asked if W.J.'s TikTok posts constituted the predicate acts

of harassment, the judge replied:

4

"that the volume and the timing of it creates more than a

reasonable inference that this was a targeted attack on the

plaintiff that was willful and malicious, and done with the

intent to cause fear and intimidation and did in fact cause

fear and intimidation."

Put another way, the judge appears to have inferred that

W.J., acting in concert with third parties, orchestrated the

relentless campaign of threats and harassment by others directed

at A.C. This is too great an inferential leap on this record.

See Reading Co-Op. Bank v. Suffolk Constr. Co., 464 Mass. 543,

556 (2013) (a reasonable inference "must be based on

probabilities rather than possibilities and cannot be the result

of mere speculation and conjecture" [citation omitted]). W.J.'s

posts did not contain any threats toward A.C. Nor did they

contain speech explicitly, or implicitly, that could be

understood to urge viewers to threaten her. 9

"No, I am not -- I am not saying that the TikToks did it.

I am saying that when you look at all of the circumstances

and the reasonable inferences, -- I'm not saying that the

people just -- the people didn't just come out of the blue

and come in such huge anger and volume because of [W.J.'s

negative Google review], it is way more than that. It's

over the top what has actually happened on all of that, and

because of that, I find there's a reasonable inference, and

that's it."

9 In the criminal context, we have said "that a threat may be

communicated to an intended target by way of a third-party

intermediary, but only where it is shown that the defendant

intended the threat to reach the target." See Commonwealth v.

Hamilton, 459 Mass. 422, 427 (2011), and cases cited.

5

The only instructions W.J. issued -- aside from a subtle

recommendation for users to review preexisting negative online

reviews of A.C.'s studio for some "light reading" -- was in

W.J.'s third TikTok post, where she asked viewers to not post

false online reviews of A.C.'s pottery studio. W.J. first made

this request in a pinned 10 comment to one of her videos.

Thereafter, she stated multiple times in her posts that she did

not believe A.C., or members of her studio, deserved to be

harassed. More to the point, there is no indication that W.J.

directed third parties behind closed doors to threaten and

harass A.C. See F.K. v. S.C., 481 Mass. 325, 334 (2019) (no

indication that defendant directed third parties to notify

plaintiff of threatening song lyrics; rather, the plaintiff was

notified by third parties "acting of their own volition").

Finally, we address whether a fact finder could infer that

W.J. posted her TikTok videos with the intent to incite third

parties to harass and threaten A.C. See Commonwealth v.

Johnson, 470 Mass. 300, 309 (2014) ("Where the sole purpose of

the defendants' speech was to further their endeavor to

intentionally harass the [victims], such speech is not protected

by the First Amendment"). Again, we conclude the answer is no.

10A "pinned" comment is one that is positioned at the top of the

comment post to ensure that it is the first comment that users

will see when they view the post.

6

As noted, when a case concerning a harassment prevention

order under c. 258E "involves speech, it must fall 'within [a]

constitutionally unprotected category of speech." Petriello v.

Indresano, 87 Mass. App. Ct. 438, 446 (2015), quoting Johnson,

470 Mass. at 311. Those categories have generally been limited

"to two: 'fighting words' and 'true threats.'" Van Liew, 474

Mass. at 37, quoting O'Brien v. Borowski, 461 Mass. 415, 425

(2012). Neither category readily applies in this case.

However, a third category of unprotected speech is appropriate

to consider in this case: speech integral to criminal conduct. 11

See Petriello, supra at 447 (speech at issue there could not

reasonably be considered "integral to criminal conduct" to

support c. 258E order).

In Johnson, the Supreme Judicial Court held the evidence

sufficient to support a conviction of harassment under G. L.

c. 265, § 43A (a), where the defendants had created false

11"'Harassment' is defined in G. L. c. 258E, § 1, in several

ways, and a plaintiff who proves any one of the various forms of

harassment qualifies for an order prohibiting the harassment."

A.S.R., 92 Mass. App. Ct. at 274. A second definition of civil

harassment under c. 258E, as is relevant here, is "an act that

. . . constitutes a violation of section . . . 43A of chapter

265," the criminal harassment statute. G. L. c. 258E, § 1,

second definition of harassment, subpart (B). We have stated

that an "analysis of criminal harassment . . . also applies to

civil harassment, when the civil harassment alleged consists of

acts that constitute a violation of G. L. c. 265, § 43A."

A.S.R., 92 Mass. App. Ct. at 279.

7

advertisements on Craigslist, 12 "luring numerous strangers and

prompting incessant late-night telephone calls to [the victims']

home." 470 Mass. at 309. The court deemed the defendants'

speech to be "integral to criminal conduct," a "long-standing

category [of speech] that is constitutionally unprotected." See

id. at 310-311. In its analysis, concluding in part that the

"directed at" prong of the criminal harassment statute had been

met, the court reasoned that "the Craigslist postings were the

equivalent of the defendants recruiting others to harass the

victims" and thus "[t]he causation link [was] satisfied." Id.

at 312-313.

Here, by contrast, too large of a causal gap exists between

W.J.'s TikTok posts and the acts of third parties to evince the

requisite intent and, in turn, remove W.J.'s posts from the

realm of protected speech. See Tison v. Arizona, 481 U.S. 137,

150 (1987) ("[t]raditionally, 'one intends certain consequences

when he desires that his acts cause those consequences or knows

that those consequences are substantially certain to result from

his acts'" [citation omitted]). The record does not reflect

that W.J. knew that third parties were harassing A.C. directly

or threatening her with physical harm or damage to property when

12"Craigslist is a classified advertisements website."

Commonwealth v. Boger, 486 Mass. 358, 359 n.2 (2020).

8

she posted her TikTok videos. 13 While W.J. may have reasonably

expected her TikTok posts to influence some viewers to steer

clear of A.C's business, the evidence simply does not support

that she intended third parties to harass or threaten A.C., and

that she did so willfully and maliciously. See O'Brien, 461

Mass. at 420 ("Both civil and criminal harassment require proof

of three or more acts of wilful and malicious conduct aimed at a

specific person").

Rather, the third-party conduct at issue appears to have

been the result of what began as relatively innocuous TikTok

posts, made as part of a petty dispute between a business owner

and a disgruntled customer, that subsequently "went viral" on

social media and took on a life of their own. See United States

v. Osinger, 753 F.3d 939, 954 (9th Cir. 2014) ("If a defendant

is doing nothing but exercising a right of free speech, without

engaging in any non-speech conduct, the exception for speech

integral to criminal conduct shouldn't apply"). See also State

v. Billings, 217 Conn. App. 1, 28-30 (2022), and cases cited

13It was not until W.J.'s fifth and final TikTok video that she

described a discussion she had with the detective from the

Boston Police Department, detailing some of the allegations

against her, and shared images of the police report that A.C.

had filed. The report contained a vague reference to A.C.

receiving numerous threats online and on social media in regard

to her business. The remaining allegations of threatening

conduct contained in the police report appear to be alleged to

have come directly from W.J.

9

("for the speech integral to criminal conduct exception to

apply, the speech in question must, at a minimum, be integral to

criminal conduct other than protected speech").

In short, because the evidence does not support that the

defendant committed three acts of harassment within the meaning

of c. 258E, the plaintiff has failed to meet her burden to

sustain the issuance of a harassment prevention order. We

therefore remand the matter to the Boston Municipal Court for

entry of an order vacating and setting aside the now-expired May

2, 2022, harassment prevention order, and for further actions

required by G. L. c. 258E, § 9. See F.K., 481 Mass. at 335.

So ordered.

By the Court (Wolohojian,

Singh & Hand, JJ. 14),

Clerk

Entered: August 28, 2023.

14 The panelists are listed in order of seniority.

10