Appellate Judges

On Appeal, Law Firm Who Unlawfully Obtained Harassment Prevention Order from Judge is Vacated as Protected Speech

The defendant appeals from the extension of a harassment prevention order issued against her under G. L. c. 258E. We vacate the order.

   Appeals Court


No. 21-P-687.

Harassment Prevention. Evidence, Threat. Libel and Slander.

Constitutional Law, Freedom of speech and press.

MAR 30, 2022 | REPUBLISHED BY LIT: APR 1, 2022

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

Justices Ariane Vuono, Sookyoung Shin, and Sabita Singh

The defendant appeals from the extension of a harassment prevention order issued against her under G. L. c. 258E.

She argues, among other things, that the extension order was predicated not on three qualifying acts of harassment, but on protected speech.

We agree and thus vacate the extension order.


In the spring of 2021, the defendant and her husband sought legal advice from the plaintiff, an attorney.

When the plaintiff later presented his findings, the defendant and her husband expressed displeasure with his work.

The representation was then terminated.

On June 25, 2021, the plaintiff filed a complaint under G. L. c. 258E, with a supporting affidavit, against the defendant only.2

The affidavit, which we quote verbatim except where indicated, alleged the following acts of harassment:

“[t]he defendants[3] were unhappy with our findings and proceeded to go on Facebook and make a public post calling us thiefs and making up things that did not happen”;

“[t]hey then proceeded to call us three times on June 25th, 2021”;

“[t]hey proceeded to email our secr[e]tary . . . , as well as copying multiple people on the email”;


“[the defendant’s husband] then proceeded to send [the secretary] a [Facebook] message trying to speak with us.”

The same day, the plaintiff appeared at an ex parte hearing in Leominster District Court. Elaborating little on his affidavit, the plaintiff claimed that the defendant committed three or more acts of harassment by “slandering [his] name” on Facebook, sending his secretary e-mail and Facebook messages, and making 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.”

When the judge next asked whether the plaintiff feared that the defendant would “physically harm” him or members of his staff, the plaintiff replied, “Definitely members of my staff.”

The judge issued a temporary c. 258E order based on this testimony and included the following provision:

“No Internet or social media posts, comments or contact with the complaining witness or office staff.”

He then transferred the case to Worcester District Court, noting that the plaintiff “appear[ed] fairly regularly in this court.”

On July 9, 2021, a judge of the Worcester District Court conducted an extension hearing by videoconference.

The plaintiff appeared, but the defendant did not (she says because of lack of notice).

The plaintiff again claimed that the defendant committed three or more acts of harassment by “slandering” him on social media and “harassing [his] staff through email, phone calls, as well as stalking them on social media.”

He further claimed that he “employ[ed] a lot of young ladies . . . , and they were extremely concerned for their safety.”

Based on this testimony, the judge extended the temporary c. 258E order for one year.


There is no basis in the record on which a c. 258E order could lawfully have issued.

1 The parties’ names are pseudonyms.

2 It appears that the plaintiff originally brought the action against both the defendant and her husband, but later crossed out the husband’s name on the complaint. The extension order itself was directed solely to the defendant.

3 The affidavit was at odds with the complaint in that it referred to “defendants” in the plural. Likewise, the plaintiff’s hearing testimony often did not differentiate between the acts of the defendant and those of her husband.

“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, 474 Mass. 31, 37 (2016), quoting O’Brien v. Borowski, 461 Mass. 415, 425 (2012).

Fighting words are not at issue here, and there is no evidence to support the plaintiff’s claim that the defendant made a true threat, let alone three.

A true threat must “communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”

Virginia v. Black, 538 U.S. 343, 359 (2003).

Also, to support the issuance of a c. 258E order, the true threat must be intended to cause

“fear of physical harm or fear of physical damage to property” and must in fact cause such fear.

O’Brien, supra at 427.

None of the communications identified by the plaintiff qualifies as a true threat, even attributing them all to the defendant, and even assuming, without deciding, that it was proper for the plaintiff to seek an order on behalf of his employees.

The plaintiff claimed that the Facebook post was slanderous, not threatening.

He offered no detail as to the content of the e-mail and social media messages, nor did he describe what the defendant said when she called his office.

Furthermore, the plaintiff admitted at the ex parte hearing that the defendant had not made any threats.

We take this opportunity to reiterate that, where a c. 258E order is sought on the basis of speech alone, the plaintiff must prove that the speech rose to the level of true threats or fighting words and not merely that it was “harassing, intimidating, or abusive in the colloquial sense.”

A.R. v. L.C., 93 Mass. App. Ct. 758, 761 (2018).

Here, if the plaintiff believed that the defendant defamed him, the proper vehicle for redress was not c. 258E, but an action for defamation.

Nor was it proper for the plaintiff to use c. 258E as a means of preventing a former client from contacting his office about an issue 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.

See Shak v. Shak, 484 Mass. 658, 663 (2020), quoting Care & Protection of Edith, 421 Mass. 703, 705 (1996)

(“[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”).

In light of our ruling, however, we need not resolve that issue or the defendant’s other arguments.

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.

So ordered.

Karen A. Pickett for the defendant.

James R. McMahon, III, for the plaintiff.

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About Pickett Law Offices, P.C.

Boston, MA Lawyer


Karen graduated with a B.A., cum laude in Economics from the College of the Holy Cross in 1990. After working as a Jesuit Volunteer, Karen attended and graduated from Northeastern University Law School where she served as a head teaching assistant and also interned for a judge in the United States Court of Appeals for the Ninth Circuit.

After graduating from Northeastern in 1995, Karen worked as a public defender where she won many criminal trials and hearings. She then clerked for the Honorable Benjamin Kaplan at the Massachusetts Appeals Court. After her clerkship, Karen became an associate at Hill & Barlow, P.C. where she practiced in the employment, criminal, and professional malpractice groups. Karen left Hill & Barlow, P.C. to join the litigation boutique of Donnelly, Conroy & Gelhaar, LLP, where she practiced for twelve years prior to founding Pickett Law Offices, P.C.

Karen is admitted to practice in both Massachusetts and New Hampshire.

Karen is a member of the Massachusetts, Boston, New Hampshire and Women’s Bar Associations. She serves as a member of the Boston Bar Association’s Criminal Law Steering Committee.

Karen authored an article in the New England Law Review, “The Road To And From Powell,” and co-authored an article in the Boston Bar Journal, “Parallel Criminal and Civil Prosecutions in Mass. Federal Court.” In May 2010, she was a moderator and presenter for a Boston Bar Association CLE program entitled, “Representing College and University Students: Multiple Perspectives and Competing Considerations.” In December 2013, Karen was a moderator and presenter for Boston Bar Association CLE program entitled, “Criminal Appeals.”

From 2013 – 2020, Karen was named a Super Lawyer in the category of White Collar Criminal Defense by Boston Magazine. From 2014 – 2020, Boston Magazine also named Karen one of the Top 50 Women Lawyers in Massachusetts.

Born in Chicago, Illinois, Justice Shin graduated from Brown University, magna cum laude with a B.S. in Chemistry, in 1996 and cum laude from Harvard Law School in 1999.

Upon graduation Justice Shin worked a year for Finnegan, Henderson, Farabow, Garrett & Dunner in Washington DC, practicing patent litigation. She then proceeded to Chicago, Illinois where she served first as a staff law clerk for the United States Court of Appeals for the Seventh Circuit and then as a law clerk for Honorable Joel M. Flaum of that court. Returning to Washington in 2003, she practiced complex commercial litigation with the firm of Kirkland & Ellis. While her practice centered on telecommunications, environmental, patent and appellate matters, she also briefed and argued, pro bono, a federal habeas corpus petition in a death-penalty case.

Arriving in Boston in 2005, Justice Shin served as an Assistant Attorney General in the Administrative Law Division. There she represented state agencies and officers in cases spanning a wide range of subject areas, including constitutional and jurisdictional issues, public benefits, employment, child welfare and utilities. During her career with the Attorney General, she appeared regularly in the trial court, this court, the Supreme Judicial Court and the United States Court of Appeals for the First Circuit.

Appointed by Governor Charles Baker, Justice Shin joined the court on September 26, 2016.

Born in the village of Hussepur, Bihar, India, Justice Singh graduated from Pennsylvania State University in 1987 with a Bachelor of Arts in the Administration of Justice. She then earned her Juris Doctor from Boston University School of Law in 1990, where she represented her school on the Craven Constitutional Law and Jessup International Law moot court teams.

Upon graduation, Justice Singh clerked for the Justices of the Massachusetts Superior Court. She then became an Assistant District Attorney with the Middlesex County District Attorney’s Office in 1991. Within the Appeals & Training Bureau of that office, she represented the Commonwealth in both the appellate and trial courts. There, she was also the Legal Director of Project Alliance, the District Attorney’s youth crime prevention initiative. In 1998, she joined the law firm of Bingham McCutchen LLP, where she engaged in complex civil litigation. Justice Singh became an Assistant United States Attorney with the Boston office in 2005. Within the Public Corruption Unit, she specialized in human trafficking cases.

In 2006, Justice Singh was appointed to be an Associate Justice of the Massachusetts District Court. She was appointed to the Appellate Division of that court in 2008. In 2014, Justice Singh was appointed First Justice of Concord District Court.

Justice Singh has been an active contributor to a number of court committees. While in practice, she served on numerous boards and undertook significant pro bono representation. She was the first president of the South Asian Bar Association of Greater Boston and past president of the South Asian Bar Association of North America. She has also taught extensively at both colleges and law schools.

Appointed by Governor Charles Baker, Justice Singh joined the court on July 5, 2017.

Associate Justice Ariane D. Vuono was born in Stamford, Connecticut, on May 15, 1957. She graduated from Yale University in 1979 with a major in Italian studies. In 1981 she received a Master of Arts in Italian literature from Middlebury College. She then attended University of Connecticut School of Law, earning her J.D. in 1984.

After serving a year as a law clerk to the justices of the Massachusetts Superior Court, she became an assistant district attorney for Hampden County, specializing in appellate work. From 1988 to 1995 she was chief of the appellate section of the District Attorney’s Office for the Northwestern District (Hampshire and Franklin Counties), and argued many cases in the Supreme Judicial Court and the Appeals Court. In 1995 she became an assistant United States attorney in Springfield, where she handled a wide variety of assignments, including federal trial and appellate work. She was appointed to the Appeals Court by Governor Mitt Romney and joined the court on March 7, 2006.

Justice Vuono has been a member of the adjunct faculty at the University of Massachusetts in Amherst, has been an adjunct professor at Mount Holyoke College and Western New England School of Law, and has lectured at numerous MCLE programs. She and her husband are the parents of three children.

On Appeal, Law Firm Who Unlawfully Obtained Harassment Prevention Order from Judge is Vacated as Protected Speech
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