First Amendment Limits in Massachusetts Criminal Harassment and 258E Cases

By Attorney Joe Serpa | Georgetown University Law Center | Massachusetts Criminal Defense Since 1995

Massachusetts uses the word “harassment” in several distinct laws. Criminal harassment under M.G.L. c. 265, § 43A is a criminal charge. A 258E harassment restraining order (harassment prevention order) is a civil remedy. Under the three-act ground in Chapter 258E, the plaintiff must prove three willful and malicious acts. Chapter 258E also authorizes relief on separate statutory grounds that do not require three acts.

The criminal case and the civil order proceeding use different burdens of proof, permit different relief, and require different findings. Neither result controls the other. Where speech supplies the alleged acts, the First Amendment limits both proceedings.

The 258E Harassment Restraining Order and the Criminal Harassment Charge

At the hearing after notice, a plaintiff relying on the three-act harassment ground must prove entitlement to relief by a preponderance of the evidence, the ordinary civil standard. F.K. v. S.C., 481 Mass. 325 (2019). A judge may issue a temporary order ex parte, without the defendant present, when the plaintiff satisfies the emergency standard in M.G.L. c. 258E. The defendant receives notice after that temporary order issues.

A two-party hearing follows, not later than ten court business days after the ex parte order, and that hearing is where the defendant first appears and contests the order. If the defendant does not appear at that hearing, the temporary orders continue in effect without further order of the court. G.L. c. 258E, § 5. Non-appearance is not neutral. The plaintiff’s burden at the two-party hearing remains a preponderance of the evidence.

Chapter 258E covers harassment by anyone, which sets it apart from the 209A restraining order (abuse prevention order) that governs family and household relationships in Massachusetts domestic violence cases. Once a 258E order issues, disobeying it becomes a separate crime, a subject our 209A and 258E restraining order violation FAQ addresses in detail.

The relief available under a 258E order is broad. The court may order the defendant to refrain from abusing or harassing the plaintiff, to have no contact, to remain away from the plaintiff’s household or workplace, and to pay monetary compensation for losses, including reasonable attorney’s fees. G.L. c. 258E, § 3(a).

Relief is limited to one year at a time. At the expiration hearing, the court may extend the order for the time reasonably necessary to protect the plaintiff or enter a permanent order. G.L. c. 258E, § 3(d). The extension hearing has its own standard, covered in the post on when unwanted contact becomes harassment.

A 258E order also has a firearms consequence. On a temporary or emergency order, where the plaintiff demonstrates a substantial likelihood of immediate danger of harassment, the court orders the suspension of any license to carry or firearm identification card. The court also orders the surrender of all firearms and ammunition the defendant owns, possesses, or controls. G.L. c. 258E, § 4A. The surrender mechanics and the review hearing are covered in the page on 258E harassment restraining orders and firearm surrender.

The criminal harassment charge under G.L. c. 265, § 43A requires the Commonwealth to prove guilt beyond a reasonable doubt, the highest standard in the legal system. A charge under § 43A proceeds through arraignment, pretrial proceedings, and trial before a judge or jury. The defendant has the right to counsel, including appointed counsel for an indigent defendant facing incarceration. The defendant also has the right to remain silent, the right to confront witnesses, the right to automatic criminal discovery, and the right to a jury trial. Evidence is subject to the rules of evidence.

A conviction under § 43A(a) is punishable by up to two and one half years in a house of correction, a fine of up to $5,000, or both. A second or subsequent offense, or a § 43A offense committed after a stalking conviction, is punishable by up to two and one half years in a house of correction or up to ten years in state prison. The fine ceiling rises to $15,000, and imprisonment and a fine may be imposed together. G.L. c. 265, § 43A(c).

Section 43A also contains a second, separate offense. Subsection (b) punishes a single act: knowingly distributing intimate visual material of an identifiable person without consent, including material produced by digitization, with its own penalties. The offense, and the computer-generated deepfake imagery it covers, are treated on the page on Massachusetts revenge porn and nonconsensual intimate images.

The 258E defendant holds real procedural rights at the civil hearing, and a defendant who is told otherwise may fail to use them. The defendant has the right to be heard, which includes the right to testify and to present evidence. The defendant also has a general right to cross-examine the witnesses on the other side, subject to the judge’s discretion to limit cross-examination for good cause.

The defendant or counsel must receive an adequate opportunity to review any affidavit the judge intends to rely on before electing whether to cross-examine. Frizado v. Frizado, 420 Mass. 592 (1995), abrogated on another ground by Zullo v. Goguen, 423 Mass. 679, 681 (1996). The rules developed for c. 209A hearings supply this procedure, and the SJC applies them to c. 258E. F.K. v. S.C., 481 Mass. 325 (2019).

The privilege against self-incrimination survives at the civil hearing. The judge may draw an adverse inference from the defendant’s silence, but that inference alone cannot meet the plaintiff’s burden. Frizado, 420 Mass. 592. For a client facing a parallel prosecution, this is the pressure point: silence protects the criminal case and costs the client in the civil one. A 258E defendant may appear with retained counsel, and an appeal from a 258E order goes to the Appeals Court as of right, even after the order expires. Seney v. Morhy, 467 Mass. 58 (2014).

What the criminal case alone provides is proof beyond a reasonable doubt, a jury, the rules of evidence, confrontation, automatic discovery, and appointed counsel for the indigent. The civil hearing is before a judge without a jury, as under c. 209A, and the rules of evidence need not be followed, provided there is fairness in what evidence is admitted and relied on. Frizado, 420 Mass. 592.

The consequence of this difference is significant. A 258E order can issue, and frequently does issue, in cases where a criminal harassment charge would not survive. A plaintiff who can meet the preponderance standard at a civil hearing may be unable to prove the same conduct beyond a reasonable doubt at a criminal trial with all constitutional protections in place. A defendant who loses a 258E civil hearing should not assume that a criminal harassment charge will follow or succeed. The proceedings are separate and the standards are different.

The Shared Elements: Willful, Malicious, and the Required Harm

Both statutes are built from the same parts, and precision here is where cases are won. Each statute requires at least three qualifying acts. Under Commonwealth v. Welch, 444 Mass. 80 (2005), overruled in part on another ground by O’Brien v. Borowski, 461 Mass. 415 (2012), the criminal statute’s “pattern of conduct or series of acts” means three or more incidents.

The 258E definition says the same thing in plain terms with its requirement of three or more acts. Each act must be willful and malicious, and an act that lacks either quality does not count toward the required three.

The counting has rules of its own. One continuous act cannot be parsed into its constituent parts to make three, and a single act is not multiplied by the number of people who witness it. F.K. v. S.C., 481 Mass. 325 (2019). The SJC applied both rules to hold that one song posted to two platforms was one act.

Willful. Wilful conduct is conduct that is intentional rather than accidental, and it requires no evil intent, ill will, or malevolence. Commonwealth v. McDonald, 462 Mass. 236, 242 (2012). Accidental contact and inadvertent communication fail the element. A client who says they meant nothing bad by the act is talking about malice, not willfulness. Willfulness asks only whether the act was deliberate.

Malicious. The two statutes define malice differently, and counsel should hold the plaintiff or the Commonwealth to the correct definition. For a 258E order, the statute defines malicious as characterized by cruelty, hostility or revenge. G.L. c. 258E, § 1. For a criminal § 43A charge, a malicious act is an intentional, wrongful act done willfully or intentionally against another without legal justification or excuse. Commonwealth v. McDonald, 462 Mass. 236, 242 (2012). Malice in either setting requires more than conduct that is merely unwelcome, offensive, or even deeply distressing.

Under O’Brien v. Borowski, 461 Mass. 415 (2012), abrogated on other grounds by Seney v. Morhy, 467 Mass. 58 (2014), the Supreme Judicial Court gave the harassment definition a narrowing construction precisely so that it would not apply to protected expression, which means aggressive but legitimate conduct falls outside it. A co-parent who must communicate about a child, a neighbor who reports a code violation, a consumer who posts a negative review, and a litigant who files a lawsuit may each alarm and distress the recipient.

None of them is engaged in malicious harassment, because each has a legal justification for the conduct.

The required harm. This is the element the two statutes define most differently, and the difference is easy to get wrong. A criminal § 43A charge contains two harm elements, and the Commonwealth must prove both. The pattern must have seriously alarmed this target, a demanding, subjective element proved by the victim’s own testimony rather than by conjecture. Commonwealth v. Johnson, 470 Mass. 300 (2014), quoting Commonwealth v. Braica, 68 Mass. App. Ct. 244, 247 (2007).

The pattern must also have been of a kind that would cause a reasonable person to suffer substantial emotional distress, an objective element. Substantial emotional distress means distress more than merely trifling or passing, and markedly greater than the distress commonly experienced as part of ordinary living. Commonwealth v. Robinson, 444 Mass. 102, 108 (2005).

Serious alarm is measured against the whole pattern rather than incident by incident. Commonwealth v. Johnson, 470 Mass. 300 (2014). The alarm must also be the target’s own. Distress at what a spouse received is derivative, and the SJC reversed a criminal harassment conviction on exactly that ground. Commonwealth v. Bigelow, 475 Mass. 554 (2016).

A 258E order requires something different. Its three acts must be committed with intent to cause, and must in fact cause, fear, intimidation, abuse, or damage to property, and under O’Brien v. Borowski the word “fear” is limited to fear of physical harm or of physical damage to property. Intimidation, abuse as the statute defines it, and property damage remain independent alternatives.

Whether the plaintiff was in fact placed in fear is judged subjectively, by what this plaintiff experienced, with no reasonable person overlay on the fear itself. Petriello v. Indresano, 87 Mass. App. Ct. 438 (2015); Gassman v. Reason, 90 Mass. App. Ct. 1, 7 (2016).

The subjective rule has a limit that decides speech cases. Where the acts said to be harassment are speech, the speech must independently qualify as constitutionally unprotected, and whether words are a true threat is measured objectively, by what they reasonably convey to the recipient in the circumstances. Commonwealth v. Cruz, 495 Mass. 110 (2024). A plaintiff’s sincere fear of protected speech supports no order and no conviction. Counsel who assumes the civil and criminal harm standards are the same will misjudge the case.

What Counts as an Act

Non-speech conduct counts. Concealing a GPS tracking device on a person’s vehicle is an act under § 43A, and it qualified even though the targets learned of the tracking only later. Commonwealth v. Brennan, 481 Mass. 146 (2018). Otherwise lawful conduct can qualify as an act of harassment when considered with other evidence, and acts of harassment can be directed at more than one person at the same time. Brennan, 481 Mass. 146.

The First Amendment: What It Protects and What It Does Not

The First Amendment to the United States Constitution and Article 16 of the Massachusetts Declaration of Rights protect freedom of speech, freedom of expression, and the right to petition the government for redress of grievances. Both the civil 258E standard and the criminal § 43A charge must be applied in a manner consistent with these protections. Where a harassment prosecution or a 258E order rests on protected expression, it is constitutionally defective.

The Supreme Judicial Court made this explicit for the criminal statute in Commonwealth v. Bigelow, 475 Mass. 554 (2016), holding that § 43A covers only constitutionally unprotected speech and that letters criticizing an elected official’s performance could not form the basis of a criminal harassment conviction.

Protected speech includes the following.

• Public commentary and criticism, including criticism of public figures, public officials, businesses, and institutions, regardless of how harsh or how personally distressing the target finds it
• Commentary and criticism posted on social media, which are evaluated under the same rules as any other speech
• Public reviews of businesses and professionals, including negative reviews that the subject disputes or finds damaging
• Protest, demonstration, and picketing directed at a business, institution, or public figure, even when conducted in a manner the target finds alarming
• Petitions, complaints, and reports filed with government agencies, regulatory bodies, or courts, even when the subject of the complaint views the filing as harassment
• Satire and parody of public figures and public institutions

Speech that is not protected, and that can support a harassment prosecution, includes the following.

• True threats, meaning statements that communicate a serious expression of an intent to commit unlawful violence against a specific person. After Counterman v. Colorado, 600 U.S. 66 (2023), the First Amendment also requires proof that the speaker at least consciously disregarded a substantial risk that the statement would be understood as threatening violence. Hyperbolic statements and statements a reasonable person would understand as venting rather than threatening are not true threats
• Fighting words, meaning direct personal insults addressed to a person that are inherently likely to provoke violence, an extremely narrow category. O’Brien v. Borowski, 461 Mass. 415, 423 (2012)
• Speech integral to criminal conduct, meaning speech that functions as the instrument of a crime rather than as expression addressed to the target. The false Craigslist advertisements in Commonwealth v. Johnson, 470 Mass. 300 (2014), which recruited strangers to descend on the victims’ home, are the Massachusetts example
• Defamatory speech. In Commonwealth v. Salvatore, 103 Mass. App. Ct. 605 (2023), false accusations that the complainant was a child abuser were unprotected

The lists are not identical on the civil and criminal sides. For a 258E order, the SJC has limited the qualifying categories of unprotected speech to two, fighting words and true threats. Van Liew v. Stansfield, 474 Mass. 31, 37 (2016). For the criminal statute, the SJC has said that other well-defined and limited categories also fall within § 43A, and the courts have applied speech integral to criminal conduct and defamation in that setting. Commonwealth v. Bigelow, 475 Mass. 554 (2016); Commonwealth v. Johnson, 470 Mass. 300 (2014); Commonwealth v. Salvatore, 103 Mass. App. Ct. 605 (2023).

The Mens Rea Question After Counterman

Massachusetts has begun applying Counterman. In Commonwealth v. Cruz, 495 Mass. 110, 111 (2024), the SJC construed the threats statute, G.L. c. 275, § 2, to require proof beyond a reasonable doubt that the defendant consciously disregarded a substantial risk that the communication would be viewed as threatening violence. The Court vacated a conviction because the jury received no instruction on that element.

The objective side survives alongside the new one: whether words are a true threat is still measured by what they reasonably convey to the recipient. Cruz also separates the two mental states: intending to deliver a statement to a person is not the same as understanding its threatening nature.

No Massachusetts appellate decision has yet applied Counterman to criminal harassment under § 43A. The question is open, and it is live in any § 43A prosecution built on speech, because Bigelow makes the protected-or-unprotected question a fact question within the first element. Where the Commonwealth’s pattern rests on statements offered as true threats, the defense should request an instruction requiring the Counterman mental state and preserve the issue if the instruction is refused.

Social Media and the First Amendment in Harassment Cases

Social media harassment prosecutions present recurring First Amendment questions. When a defendant is charged under § 43A for a pattern of social media conduct, defense counsel must examine whether each act the Commonwealth relies on is protected expression or unprotected speech or conduct.

The medium does not decide that question. Content and context do. In Commonwealth v. Salvatore, 103 Mass. App. Ct. 605 (2023), the Appeals Court read the defendant’s social media statements in the context of his conduct at the time, including his indications of his constant physical presence in the town where the complainant lived. Based on their content, frequency, duration, and escalating obsessiveness, a fact finder could view the statements as objectively threatening and therefore unprotected.

Public posting is not a safe harbor. In Johnson, the SJC said the defendants “cannot launder their harassment . . . through the Internet to escape liability.” Commonwealth v. Johnson, 470 Mass. 300 (2014).

Criticism remains protected on any platform. After Bigelow, statements that criticize an elected official’s qualifications and performance on issues of public concern cannot be counted toward a criminal harassment pattern, even where they include personal insults. The distinction between public commentary and private-sphere targeting still applies in practice. A message sent to a person’s private inbox, to their employer, or to a family member in order to damage the person’s relationships is different. Conduct of that kind is more likely to satisfy the malice element than commentary posted where the person chose to engage the public.

The Public Figure Defense

A defendant who engages with a public figure has a distinct First Amendment position, and the strongest support for it comes from the protected speech cases. In Van Liew v. Stansfield, 474 Mass. 31 (2016), the SJC held that sharp and even caustic criticism of a local public official was core political speech, protected by the First Amendment, and could not constitute harassment under c. 258E. Bigelow holds the same for the criminal statute.

Public figures keep the same protection everyone else has. A public figure who is threatened, stalked, or subjected to a targeted campaign of abuse is entitled to relief, and to prosecution of the offender, on the same proof as any other person. The elements are the elements.

The setting still counts for the objective half of the criminal harm standard. What would cause a reasonable person substantial emotional distress depends on context, and under Salvatore a court views statements in the context of the conduct around them. The defense weakens where the conduct includes threats, private-sphere contact, or escalation after a clear statement that contact is unwanted.

The Difference Between Annoying and Criminal

The most practically important point in Massachusetts harassment law is that annoying, offensive, and even deeply distressing conduct is not automatically criminal. The statutes require more. They require willfulness, malice, and the required harm: under § 43A, serious alarm to this target together with distress a reasonable person would suffer, and under 258E, actual fear, intimidation, abuse, or property damage. The courts have been consistent that these statutes do not criminalize every uncomfortable social interaction.

A person who sends repeated emails asking for a professional relationship after being turned down is annoying. A person who shows up at someone’s workplace again and again after being told to stay away is potentially dangerous.

Malice separates the two, together with whether the conduct has a legal justification and whether the pattern is something a reasonable person would find genuinely threatening rather than merely persistent. Under the civil statute, persistence alone does not establish harassment. R.S. v. A.P.B., 95 Mass. App. Ct. 372, 376 (2019). The analysis is fact specific, but the statutory and constitutional boundaries are clear. Not every course of unwanted contact is harassment under Massachusetts law.

If You Have Been Charged with Criminal Harassment

A criminal harassment charge under G.L. c. 265, § 43A can begin with a clerk-magistrate hearing when police did not make an arrest at the scene. A denial at the clerk-magistrate stage means no arraignment, no public CORI entry, and no criminal record. Our Massachusetts clerk-magistrate hearing FAQ explains what happens at that stage and how counsel prepares for it. For licensed professionals and non-citizens, stopping the case here eliminates the licensing and immigration consequences that arraignment triggers, consequences our licensed professional criminal defense FAQ addresses in detail.

One procedural rule from Salvatore applies at exactly this stage. Where a clerk-magistrate finds probable cause after hearing testimony, a motion to dismiss the complaint is ordinarily reviewed on a record that includes that testimony. The defendant bears the responsibility of putting the complete show cause record before the judge. Commonwealth v. Salvatore, 103 Mass. App. Ct. 605 (2023). Counsel who may later attack the complaint must protect the record at the hearing itself.

Whether the complaining witness can drop the charge is a common question, and the answer is the same here as in any Massachusetts criminal case. The decision belongs to the Commonwealth, not to the complainant.

When a case proceeds to arraignment and trial, the defense focuses on several things. It tests the sufficiency of each alleged act under the willful, malicious, and harm requirements. It raises First Amendment challenges to any act that is protected expression, and after Counterman it presses the mens rea question. It probes the credibility of the complainant and any inconsistencies in the account. And it attacks the absence of a qualifying pattern of three or more acts directed at the specific person on each occasion.

Key Takeaways

• Criminal harassment under G.L. c. 265, § 43A(a) requires three or more acts, each willful and malicious, and a pattern that both seriously alarmed this target and would cause a reasonable person to suffer substantial emotional distress. The Commonwealth must prove the subjective harm element and the objective harm element separately
• Malice has two definitions. For a 258E order it is conduct characterized by cruelty, hostility or revenge; for a § 43A charge it is an intentional, wrongful act without legal justification or excuse. Conduct with a legal justification is not malicious even when it causes real distress
• The First Amendment protects public commentary, social media criticism, negative reviews, protests, and government petitions even when the subject finds them deeply distressing. True threats, fighting words, speech integral to criminal conduct, and defamation fall outside that protection
• After Counterman v. Colorado, 600 U.S. 66 (2023), a true threat requires at a minimum the speaker’s conscious disregard of the risk that the statement would be understood as threatening violence. The SJC applied that rule to the threats statute in Commonwealth v. Cruz, 495 Mass. 110 (2024), and its application to § 43A is an open question the defense should raise
• A 258E civil order can issue at a lower burden of proof than a criminal § 43A charge requires. Losing a 258E hearing does not establish that criminal harassment occurred
• A criminal harassment charge that begins with a citation rather than an arrest may be resolved at a clerk-magistrate hearing before any public criminal record is created, and the defense protects the show cause record for any later motion

Serpa Law Office represents defendants in criminal harassment and stalking cases across the Massachusetts District Courts and the Boston Municipal Court. Contact Serpa Law Office at 617.936.0201 for a confidential consultation. The Boston office is at 20 Park Plaza #400A, and the Quincy Office is at 500 Victory Road, Suite 400A.

Related Resources

• Massachusetts stalking defense under M.G.L. c. 265, § 43
• Massachusetts 258E Harassment Restraining Orders (Harassment Prevention Orders)
• Violation of a 258E Civil Harassment Restraining Order
• Massachusetts 209A Restraining Orders (Abuse Prevention Orders)
• Violation of a 209A Restraining Order (M.G.L. c. 209A, § 7)
• When Does Unwanted Contact Become Harassment Under Massachusetts Law?
• Clerk-Magistrate Hearings in Massachusetts
• I Received a Show Cause Notice in Massachusetts. What Do I Do?
• Arraignment in the Massachusetts Trial Court
• Illegal Searches and Seizures in Massachusetts
• Criminal Defense for Licensed Professionals in Massachusetts
• Immigration Consequences of Massachusetts Criminal Charges
• Massachusetts CORI Sealing and Expungement