Lawyer Gets Harassment Restraining Order Against Ex-Clients Based on (Among Other Things) Online Criticism

The pseudonymized yesterday decision has been in Kareem K. v. Ida I.(Reported by Justices Ariane Vuono and Sookyoung Shin. And Sabita Singh).

The plaintiff was an attorney who the defendant sought out legal counsel from. The plaintiff presented his findings later and the husband of the defendant expressed their dissatisfaction with the work. The representation was ended.

The plaintiff brought a G.L. c. 258E complaint on June 25, 2021. [the harassment restraining order statute] … against the defendant only. We quote the affidavit verbatim, except where noted, as claiming that there were three acts of harassment.[t]He defendants weren’t happy with our findings, and went on Facebook to make a post calling us thieves and making up stuff that didn’t happen.”[t]”He then called us three more times on June 25, 2021.”[t]He then emailed our secr[e]tary …, as well as copying multiple people on the email”; and “[the defendant’s husband]Then we sent the message. [the secretary]You can find more information at [Facebook]We are looking forward to your message.

The plaintiff also appeared in an ex parte hearing at Leominster district court that day. Although he didn’t elaborate much on his affidavit the plaintiff said that the defendant was guilty of harassing by “slandering” three to four times. [his]Name” to Facebook. He also sent his secretary messages and emaileds via Facebook. The plaintiff made telephone calls to his office. When the judge asked whether the defendant made any personal threats, the plaintiff replied, “Not so much personal threats, … but knowing what I know and her history, … I am in fear of this woman.” Next, the judge asked the plaintiff if he was afraid that the defendant would physically harm him or other members of his staff. The plaintiff answered, “Definitely, members of my staff.”

A temporary c.258E order was issued by the judge based upon this testimony. The provision read: “No Internet, social media comments, posts, or contact with complainant witness or staff.” … [At a later hearing, t]He plaintiff claimed again that defendant harassed him by “slandering” and “harassing” him via social media. [his]Staff can be reached via email and phone, or by stalking them on Social Media. … Based on this testimony, the judge extended the temporary c. 258E order for one year.

Court ruled it unconstitutional

The record does not support the notion that a c. 258E order could legally have been issued. “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.'” The plaintiff does not claim the defendant used fighting words. There is also no evidence that they made any threats. True threats must be “able to communicate a grave threat of violence against a specific individual or group.” A c. 258E Order can also be issued if the true threat is intended to create fear or physical injury to property.

The plaintiff did not identify any communications as being a threat. He even claimed they were all the fault of the defendant. And he even assumed, but didn’t decide, that it was appropriate for him to request an order in his favor. Plaintiff claimed the Facebook posting was defamatory, and not threatening. He did not give any detail about the message and the social media posts, nor what the defendant told her after she called his office. The plaintiff also admitted that the defendant did not make any threats at the ex parte hearing.

This is to remind you that a c.258E order cannot be granted solely on speech. The plaintiff must show that the speech reached the level of real threats or fighting words, and not just that it was harassing, intimidating or abusive in the common sense. The plaintiff may believe that the defendant had defamed them. In this case, however, he would be able to seek redress through an action for damages, not c.258E. It was also inappropriate for the plaintiff not to use c.258E to prevent a former client from calling his office regarding an issue that related to his representation.

We note also that, even had the plaintiff proved three qualifying acts, it is doubtful that the scope of the extension order—which appears to bar the defendant from making Internet or social media posts that reference the plaintiff in any way—could pass constitutional scrutiny…. “[A]ny limitation on protected expression must be no greater than is necessary to protect the compelling interest that is asserted as a justification for the restraint” …. We do not need to resolve the issue, nor any of the other arguments, in light of our decision.

The case is remanded to the District Court for entry of an order vacating and setting aside the extension order and for further actions required by G. L. c. 258E, § 9.

Jay Wolman and Marc Randazza (who were briefed but withdrew prior to oral argument) are congratulated on their win. Karen Pickett is also congratulated on their victory.