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From E.B. v. J.R., decided Aug. 20 by Massachusetts Appeals Court Justices Sabita Singh, Rachel Hershfang, and Chauncey Wood:
The defendant appeals from harassment prevention orders issued pursuant to G. L. c. 258E (258E orders), by a judge of the District Court, requiring the defendant, among other things, to stay away from a city zoo where she had regularly protested the treatment of animals in its care.
asserted
she → decide → care
The plaintiff, a veterinarian who worked at the zoo, sought and obtained an ex parte 258E order against the defendant, which was later extended following a hearing after notice…
asserted
which → work → notice
When reviewing whether the evidence was sufficient to support the issuance [or extension] of a 258E order, we consider [consistently with the statutory requirements] whether, "by a preponderance of the evidence, together with all permissible inferences," the judge could have found "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.'"
uncertain
defendant → review → property
…
Where the harassing acts consist of speech, each act must be the type of speech that is not protected by the First Amendment to the United States Constitution, i.e., generally either "true threats" or "fighting words."
asserted
that → harass → Constitution
True threats include "direct threats of imminent physical harm" and "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 and evince intent on the part of the speaker or actor to cause such fear."
asserted
victim → include → fear
Fighting words are limited to personal insults that are inherently likely to incite a violent reaction….
asserted
that → fight → reaction
The plaintiff's affidavit described the following four alleged incidents of harassment.
asserted
affidavit → describe → harassment
First, in July 2024, while the plaintiff was working at the zoo, the defendant began "yelling and screaming" at the plaintiff that she "should lose [her] job and right to be a veterinarian[,] … that [she] was abusing [her] power[,] and that [she was] abusing and killing the animals."
asserted
she → work → animals
Second, in September 2024, while the plaintiff was working at the zoo, the defendant began "telling other [zoo] visitors falsehoods about the elephants being beaten."
asserted
elephants → work → falsehoods
The plaintiff told the visitors that the allegations were not true, but the defendant "immediately yelled at [her] over [her] explanation to the visitors and got within inches of [her] face to continue yelling" at her.
asserted
defendant → tell → her
About forty-five minutes later, the defendant reapproached the plaintiff and got "in [her] face yelling at [her] about how [she was] a bad veterinarian and [her] cruelty towards animals."
asserted
she → reapproache → animals
The plaintiff alleged that she "felt like [the defendant] was trying to intimidate [her] to quit [her] job."
asserted
defendant → allege → job
The defendant was "in [her] face videotaping" the plaintiff, so the plaintiff called 911.
asserted
plaintiff → videotape → 911
While the plaintiff was on the phone, the defendant "chased after [the plaintiff]."
asserted
defendant → chase → plaintiff
Third, also in September 2024, the defendant "formally fil[ed] a written complaint to the [veterinary licensing] Board" that "was all lies and falsehoods."
asserted
that → fil[e → Board
Fourth, in November 2024, a television news crew was at the zoo reporting on the elephants when the defendant disrupted an interview and began to "yell and scream at [the plaintiff] that [she was] not a licensed veterinarian and that she [did] not have a license to practice in [Massachusetts], and that [she was] abusing and murdering elephants."
asserted
she → report → elephants
The defendant also "threaten[ed] [the plaintiff's] career."
asserted
defendant → threaten[e → career
Of the four incidents alleged, only the second arguably constituted harassing conduct—getting within inches of the plaintiff's face while yelling and chasing after the plaintiff.
asserted
second → allege → plaintiff
The remaining alleged conduct constituted protected speech, not rising to the level of fighting words or true threats….
asserted
conduct → remain → words
[T]hreats containing ideas or advocacy causing fear of economic loss or unfavorable publicity are not "true threats" ….
asserted
T]hreats → contain → loss
As a result, the judge erred in finding that the incidents described by the plaintiff amounted to three requisite acts of harassment pursuant to G. L. c. 258E….
asserted
incidents → err → c.
The court also concluded the court violated plaintiff's due process rights:
[At the motion hearing, t]he plaintiff's attorney recited the procedural background and the judge began to review the plaintiff's affidavit.
asserted
judge → conclude → affidavit
The plaintiff's lawyer then started to relate that the defendant had been charged with violating the ex parte order, when the defendant stated, "I object to that, Your Honor."
asserted
I → start → that
The judge admonished the defendant, "No, no.
asserted
judge → admonish → defendant
First of all, … you're going to understand what the rules are; okay? …
asserted
rules → go → all
The rules are, you're not to interrupt at any time."
asserted
you → interrupt → time
The judge then explained, "You don't, in a civil case, have the opportunity to say you object….
asserted
you → explain → opportunity
It doesn't work that way….
asserted
It → work → ?
The judge then turned to the plaintiff and asked her about the Federal trial in which the plaintiff had testified the previous year.
asserted
plaintiff → turn → which
[This appears to me to be Rowley v. City of New Bedford (D. Mass. 2024).
asserted
This → appear → Bedford
The plaintiff explained that the defendant had filed a lawsuit against the city for violation of the Endangered Species Act and that the suit was resolved in favor of the city.
asserted
suit → explain → city
The plaintiff's counsel offered to provide the judge with a copy of the decision.
asserted
counsel → offer → decision
When the judge asked whether the defendant had a copy, the defendant replied, "Yes, ma'am, I do.
asserted
I → ask → copy
Yes, Your Honor," and added, "I object to it being relevant."
asserted
it → add → ?
The judge responded, "What did I say about objections?" and "I decide whether something is relevant[,] right?"
asserted
something → respond → objections
The defendant then stated that she disagreed that the Federal court decision was relevant to the plaintiff's request for a 258E order.
asserted
decision → state → order
The judge replied, "You can disagree all you want, but—and you can voice that, I don't want you [to] think you can't voice it….
asserted
you → reply → it
But you can't say you object."
asserted
you → say → ?
The judge then said that she had reviewed the defendant's motion to vacate and asked why she should not extend the 258E order.
asserted
she → say → order
Just as the defendant began to explain that the plaintiff's claims did not meet the legal standard, the judge cut off the defendant and asked a series of questions, pointedly asking why the plaintiff would accuse the defendant if the allegations were not true.
uncertain
allegations → begin → defendant
…and 19 more, not listed.
The Aporia