When Does Unwanted Contact Become Harassment Under Massachusetts Law?

By Attorney Joseph Serpa | Georgetown University Law Center | 30 Years Massachusetts Criminal Defense

June 2026

A social media follower who comments on a public figure’s posts. A fan who approaches a television personality at a road race and asks for a photograph. A person who emails a professional team requesting to attend an industry event and sit near a colleague they admire. Are any of these acts of harassment under Massachusetts law? Almost certainly not. The answer is more legally specific than most people realize, and it matters enormously for anyone who has been served with a G.L. c. 258E harassment prevention order or who is facing a 258E application in a Massachusetts District Court.

Massachusetts courts have been clear that the 258E statute was not designed to reach all uncomfortable, unwelcome, or offensive conduct. The Appeals Court has said outright that the statutory definition of harassment is much more exacting than the everyday meaning of the word. Every 258E plaintiff must satisfy specific legal requirements, and every defendant has the right to challenge each one. In practice, defending a restraining or harassment order case begins with holding the plaintiff to those requirements.

The Statutory Standard: What “Harassment” Means Under G.L. c. 258E

G.L. c. 258E, § 1 gives harassment two alternative definitions. The first is a pattern definition. It requires 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 the acts must in fact cause one of those harms. The second is a single-act definition. It covers an act that by force, threat or duress causes another person to involuntarily engage in sexual relations, or an act that violates one of the enumerated criminal statutes. That list includes the indecent assault and battery statutes, the rape and statutory rape statutes, enticement of a child, stalking under G.L. c. 265, § 43, and criminal harassment under G.L. c. 265, § 43A. Simple assault and simple assault and battery are not on the list.

In the vast majority of civil 258E cases, the plaintiff is proceeding under the three-act prong rather than the single-act prong. The three-act prong imposes independent requirements on each alleged act.

• The act must have been willful, meaning intentional rather than accidental
• The act must have been malicious, which the statute defines as “characterized by cruelty, hostility or revenge”
• The act must have been aimed at the plaintiff specifically, not at a third party and not at the world in general
• The act must have been committed with the intent to cause fear, intimidation, abuse or damage to property
• The course of conduct as a whole must in fact have caused fear, intimidation, abuse or damage to property

The Supreme Judicial Court has narrowed the fear element even further. The word “fear” in the statute means fear of physical harm or fear of physical damage to property. Fear of embarrassment, economic loss, or unfavorable publicity does not count. Each of the three required acts must independently satisfy the willfulness, malice, and intent elements. A plaintiff who can identify three unwelcome interactions but cannot establish every element for each one cannot obtain a 258E order under the three-act prong.

It also helps to understand what 258E is not. A G.L. c. 209A abuse prevention order requires a family, household, or dating relationship and is the order courts issue in domestic violence matters. The Legislature enacted c. 258E in 2010 to reach everyone else, so neighbors, coworkers, strangers, and social media followers can all be 258E defendants. That breadth is exactly why the courts police the elements so carefully.

The Controlling Cases: O’Brien, Gassman, Seney, and Van Liew

O’Brien v. Borowski (461 Mass. 415, 2012): Malice Means Cruelty, Hostility, or Revenge, Not Just Unwelcomeness

The Supreme Judicial Court’s 2012 decision in O’Brien v. Borowski (461 Mass. 415) is the foundational 258E decision. The SJC explained that the three-act prong carries two layers of intent. The acts must be willful and malicious, with malicious defined by the statute as characterized by cruelty, hostility or revenge, and the acts must also be committed with the intent to cause fear, intimidation, abuse or damage to property. Conduct that is merely unwelcome or offensive satisfies neither layer. On the record before it, the Court directed that the order be vacated.

O’Brien also gave the statute a constitutional limiting construction. Where the alleged acts are speech rather than physical conduct, the speech must fall within one of two narrow categories the First Amendment does not protect. Fighting words are direct personal insults addressed to a person that are inherently likely to provoke violence. True threats are direct threats of imminent physical harm and words or actions that, read in context, cause the victim to fear such harm and show the speaker intended that fear. Speech that is neither cannot count as an act of civil harassment, however much the listener dislikes it.

The practical implication of O’Brien is significant. A neighbor who files a noise complaint, a landlord who pursues eviction, a business competitor who sends aggressive but lawful correspondence, and a fan who approaches a public figure at a public event may all be engaging in conduct the other party finds unwelcome. None of them are engaging in malicious conduct under O’Brien unless the conduct is characterized by cruelty, hostility, or revenge and is intended to place the person in fear of physical harm or property damage. Unwelcomeness, standing alone, is not malice, and annoyance, standing alone, is not fear.

Gassman v. Reason (90 Mass. App. Ct. 1, 2016): An Exacting Definition and a Fresh Burden at Every Extension

The Appeals Court’s decision in Gassman v. Reason (90 Mass. App. Ct. 1, 2016) involved feuding neighbors and complaints about piano playing. The court vacated the extension of a 258E order and restated how demanding the statute is. The plaintiff bears the burden of proving that each of the three qualifying acts was maliciously intended.

Gassman also clarified the fear element. There is no reasonable person test for the plaintiff’s fear under c. 258E. The question is whether the plaintiff was in fact placed in fear. Subjective fear cannot substitute for proof of the defendant’s intent, however, so a plaintiff who genuinely feels afraid still loses without evidence that the defendant intended to cause fear, intimidation, abuse, or property damage. In Gassman itself, repeated noise complaints to the police and one unsuccessful application for an assault and battery complaint at a clerk-magistrate hearing were not acts of harassment because the court found no evidence of any intent to harm.

A further point matters enormously for defendants. Gassman reviewed only the extension, held the plaintiff to the full statutory standard, and vacated. A defendant who did not contest the original order can still contest the extension.

Seney v. Morhy (467 Mass. 58, 2014): The Acts Must Be Aimed at the Plaintiff, and Three Acts Means Three

In Seney v. Morhy (467 Mass. 58, 2014), a dispute between a youth baseball parent and an assistant coach, the SJC vacated a 258E order for insufficient evidence. The defendant’s email to the head coach, which described the plaintiff in unflattering terms, was not directed at the plaintiff and was not motivated by cruelty, hostility, or revenge. Even accepting that a telephone threat relayed through the head coach could qualify, the plaintiff could not assemble the three qualifying acts the statute demands.

Seney teaches two lessons that come up constantly. Complaints about a person made to a coach, an employer, or another third party are generally not acts aimed at that person. And the count matters, because a plaintiff who fears more unwelcome interactions must still prove three completed qualifying acts. Generalized worry about what a defendant might do next cannot substitute for past conduct that caused fear or intimidation. Seney also confirmed that a defendant may appeal even after an order expires, because a wrongly issued order carries a stigma the defendant has a continuing interest in erasing.

Van Liew v. Stansfield (474 Mass. 31, 2016): Speech on Matters of Public Concern Is Not Harassment

The SJC returned to the constitutional limits in Van Liew v. Stansfield (474 Mass. 31, 2016), where a local official sought a 258E order against a political critic after a heated municipal election dispute. The Court held that the challenged speech, which primarily concerned a local election and issues of public concern, was neither fighting words nor true threats, with one possible exception, and that no order should have issued. Even a phone call in which the critic loudly called the official wrong, uneducated, or stupid failed to qualify. Insults of that kind are not plainly likely to provoke a violent reaction, and they threaten nothing. At most they were political hyperbole, the kind of robust debate the First Amendment protects.

The Specific Fact Patterns: What Crosses the Line and What Doesn’t

Social Media Comments on Public Posts: Almost Never Harassment

A person who responds to another’s public social media posts is engaging with content the author chose to make public, and that is the intended interaction model of every platform. For a comment to count as an act of 258E harassment, it must be a true threat or fighting words, posted with cruelty, hostility, or revenge and with the intent to place the target in fear of physical harm. Threatening or menacing messages can qualify. Compliments, questions, and ordinary engagement cannot.

Comments that are “benign” deserve special mention, because plaintiffs in 258E applications use that word more often than perhaps any other. A plaintiff who acknowledges that the defendant’s conduct used benign wording has conceded the heart of the case. Benign wording is the opposite of cruelty, hostility, or revenge, and it communicates no intent to cause fear of physical harm. Under O’Brien, that concession is fatal to the malice and intent elements alike.

Approaching a Public Figure at a Public Event: Context Is Everything

A public event that a public figure has advertised to her audience creates a specific context for interactions. Consider a television journalist who publicizes on social media that she will be running in a 5K road race near the Boston Common, and who then encounters a viewer there who asks for a photograph and expresses condolences about a loss she also publicized. That is the kind of viewer attention her public communications invited. Nothing about it suggests cruelty, hostility, revenge, or an intent to place her in fear of physical harm.

The pre-race interaction fails the malice and intent elements because there is no conceivable intent to cause fear in asking for a photograph, asking about training, and expressing sympathy about a deceased pet. The post-race encounter, in which the same viewer shows her a video he recorded of her finishing the race, mentions he posted it to Instagram, and then respects her statement that she needs to leave, is similarly not harassment. Recording and posting a clip of a public race finish is expressive activity nowhere near a true threat or fighting words. Stopping when asked is the opposite of harassment.

One critical detail deserves emphasis. A plaintiff who thanked the defendant during the very interaction they later characterize as harassing faces an insurmountable credibility problem on both malice and fear. Conduct that elicits genuine thanks at the moment it occurs did not place them in fear of physical harm, and it cannot plausibly be described as cruelty, hostility, or revenge.

An Email Through Proper Channels: Transparency and Compliance With Denial

A person who sends an email to a professional institution, identifying themselves by full name, making a specific request through the professional’s team rather than directly to the individual, and accepting the denial without protest or further contact, has not engaged in harassment under the 258E statute. Seney speaks directly to this pattern. A communication sent to an organization or a third party is generally not an act aimed at the specific person. Genuine harassment shows opacity, persistence, refusal to accept boundaries, and escalation. This conduct shows transparency, a single communication through appropriate channels, and acceptance of the boundary set in response.

The absence of further contact is independently decisive. A single email, followed by nineteen days of complete silence, is not a pattern of anything. It is a request that was denied and accepted, which is exactly how professional institutional channels are supposed to work.

The Public Figure Defense in 258E Cases

Massachusetts appellate courts have not created a separate public-figure category under c. 258E. The protection comes instead from two doctrines that apply in every case but do the most work when the plaintiff lives a public life. First, the limiting construction from O’Brien and Van Liew means that speech directed at or about a person who invites public engagement cannot be harassment unless it amounts to fighting words or true threats. Commentary, criticism, fan attention, and even harsh accusations on matters of public concern are protected. Second, the narrowed fear element means the plaintiff’s distress must be fear of physical harm or property damage. The SJC has said the statute does not reach fear of economic loss, of unfavorable publicity, or of defeat at the ballot box, which are precisely the fears public roles generate.

None of this means public figures have no protection under 258E. A broadcast journalist who is stalked, physically threatened, or subjected to a campaign of true threats is entitled to the same protection as any other plaintiff. But they must prove the same elements as everyone else. Attentive viewer engagement in public settings does not satisfy them.

What Crosses the Line

For clarity, the analysis above is not an argument that 258E orders should never issue. The statute exists for good reasons and addresses genuine harm. Conduct that clearly satisfies the standard under O’Brien, Seney, and Gassman includes the following.

• Repeated threatening communications, meaning emails, texts, or messages that convey explicit or implied threats of physical harm. True threats are exactly what the statute reaches
• Showing up at the plaintiff’s home or workplace uninvited after being told to stop, in circumstances that communicate a threat of harm
• Targeted online campaigns built on threats or menace, designed to place the plaintiff in fear for personal safety
• Following or surveilling the plaintiff in physical space over time, conduct that also risks a stalking charge under G.L. c. 265, § 43
• Contacting the plaintiff’s family members, friends, or employer in a manner intended to intimidate the plaintiff or place the plaintiff in fear
• Any single enumerated offense, most commonly criminal harassment under G.L. c. 265, § 43A or stalking under G.L. c. 265, § 43

The criminal harassment statute itself has grown. Chapter 118 of the Acts of 2024 amended G.L. c. 265, § 43A to raise the maximum first-offense fine to $5,000 and to reach abuse accomplished through digitization, including computer-generated deepfake imagery. I covered that amendment in my post on the Massachusetts revenge porn law and Chapter 118. A single act violating the amended statute can support a 258E order under the single-act prong.

The distinguishing feature of all of these is the combination of cruelty, hostility, or revenge, an intent to place a specific person in fear, and conduct that causes fear of physical harm or property damage. Viewer attention, however intense or unwelcome, is different from targeted harassment.

The Criminal Statute Behind the Civil Standard

The three-act architecture of 258E has a criminal counterpart. Criminal harassment under M.G.L. c. 265, § 43A(a) requires proof beyond a reasonable doubt of at least three separate acts, each intended to target the specific person, each willful and malicious, together with serious alarm in fact and conduct that would cause a reasonable person substantial emotional distress. Commonwealth v. Welch, 444 Mass. 80 (2005), fixed the three-incident minimum, and District Court Model Jury Instruction 6.640 (revised February 2026) states the elements. The penalties changed in 2024: Chapter 118 of the Acts of 2024 raised the fine for a first offense to $5,000 alongside up to two and one half years in the house of correction, and a second or subsequent offense now carries up to ten years in state prison and a $15,000 fine under § 43A(c). The complete treatment, from the statute through the defenses, is on our page on criminal harassment defense in Massachusetts, with short answers in our criminal harassment FAQs.

The constitutional limits described above for 258E orders apply with at least equal force to the crime. The Supreme Judicial Court reversed criminal harassment convictions based on letters about a town selectman’s performance in Commonwealth v. Bigelow, 475 Mass. 554 (2016): where the charged acts are speech, each act must be a true threat, fighting words, or otherwise unprotected expression. The pattern can also be assembled online. In Commonwealth v. Johnson, 470 Mass. 300 (2014), false internet postings that sent strangers to the victims’ home counted as acts of harassment committed through third parties, and in Commonwealth v. Salvatore, 103 Mass. App. Ct. 605 (2023), the charged pattern consisted largely of social media postings about the complainant rather than messages to him.

For a person served with a 258E order, the criminal statute matters for a second reason: conduct after service can be charged as criminal violation of the order under c. 258E, § 9 and as criminal harassment at the same time, and where a threat is added the charge becomes stalking under § 43. The moment an application is filed is therefore the moment to stop all contact and speak with counsel, before three acts exist.

If You Have Been Served With a 258E Order

If you have been served with a 258E harassment prevention order application and your first court date is approaching, you have the right to appear at the hearing after notice and contest the order. The hearing is civil, not criminal, so there is no right to a court-appointed attorney. You do have the right to retain counsel, to present evidence, and to challenge the plaintiff’s account. Under Gassman, an extension must satisfy the full statutory standard on its own evidence.

The most important things to do immediately after service are these.

• Do not contact the plaintiff in any way, not directly, not through a mutual friend, not on social media. The order is enforceable against you once you have been served or otherwise have knowledge of it. Any contact is a criminal violation under G.L. c. 258E, § 9, punishable by a fine of up to $5,000, up to 2.5 years in a House of Correction, or both, and the violation case moves through the ordinary Massachusetts criminal process
• Preserve all evidence, including every social media communication, every email, every text, and every record of the interactions the plaintiff has characterized as harassment
• Write down your account of every alleged interaction in as much factual detail as possible, while the events are fresh
• Retain counsel before the hearing date

Related Serpa Law Office Resources: Massachusetts 258E Harassment Prevention Orders, Defense and Plaintiff Representation, Defending 209A and 258E Violations in Massachusetts, and Massachusetts 209A Abuse Prevention Orders.

Key Takeaways

• Under G.L. c. 258E, § 1, the three-act prong requires three or more willful and malicious acts aimed at a specific person, each committed with the intent to cause fear, intimidation, abuse or damage to property, and the course of conduct must in fact cause one of those harms
• Malice under the statute and O’Brien v. Borowski (461 Mass. 415, 2012) means conduct characterized by cruelty, hostility, or revenge. Unwelcomeness, even genuine unwelcomeness, is not malice
• Where the alleged acts are speech, they must be fighting words or true threats. Van Liew v. Stansfield (474 Mass. 31, 2016) holds that heated speech on matters of public concern is neither
• The fear the statute addresses is fear of physical harm or physical damage to property. There is no reasonable person test for the plaintiff’s fear under Gassman v. Reason (90 Mass. App. Ct. 1, 2016), but subjective fear counts for nothing without proof that the defendant intended to cause it
• Acts aimed at third parties are not acts aimed at the plaintiff, and three acts means three. Seney v. Morhy (467 Mass. 58, 2014) vacated an order on exactly those grounds
• A plaintiff who characterizes a defendant’s conduct as “benign” in their own affidavit has conceded the malice element. A plaintiff who thanked the defendant during the interaction has the same problem
• Transparency, single-communication requests through proper channels, and acceptance of denials are the opposite of harassment

Contact Serpa Law Office at 617.936.0201 for a free consultation on a 258E matter. The Boston office is at 20 Park Plaza #400A. The Quincy office is at 500 Victory Rd., Suite 400A.