Criminal Harassment, 258E Orders, and the First Amendment in Massachusetts: What the Statutes Require

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

Two separate Massachusetts proceedings use the word “harassment” to describe the conduct they reach. The 258E civil harassment prevention order under M.G.L. c. 258E is one, and the criminal harassment charge under M.G.L. c. 265, § 43A is the other. They share a common skeleton. Each requires a pattern of at least three willful and malicious acts directed at a specific person. They diverge in almost everything that follows. They operate in different courts, at different burdens of proof, and with different consequences, and the harm each one requires is defined differently. Both are also bounded by the First Amendment in ways that Massachusetts courts have articulated clearly and that defense counsel must understand and use.

In a domestic violence case, whether the complaining witness can simply drop the charges is one of the most misunderstood questions in the district courts. The decision belongs to the Commonwealth, not to the alleged victim. Our page on how criminal cases get dismissed in Massachusetts explains what really happens when a witness wants the case to go away, and the narrow grounds on which a judge can dismiss a case without the prosecutor.

The Statutory Framework: Civil vs. Criminal

The 258E civil standard requires the plaintiff to prove harassment by a preponderance of the evidence, the ordinary civil standard. A judge can issue a temporary order ex parte, without the defendant present, when the plaintiff shows a substantial likelihood of immediate danger of harassment. The defendant receives notice only after that order has already issued. 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. The plaintiff’s burden at the two-party hearing remains a preponderance of the evidence. Chapter 258E reaches harassment by anyone, which sets it apart from the 209A 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 violation FAQ addresses in detail.

The criminal harassment charge under M.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, the right to remain silent, the right to confront witnesses, and the right to a jury trial. Evidence is subject to the rules of evidence. A conviction carries up to two and one half years in a house of correction or a fine of up to $5,000, or both, and the exposure rises to as much as ten years in state prison for a second or subsequent offense or for an offense committed after a stalking conviction. None of these protections, and none of this exposure, exist in a 258E civil proceeding.

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 Three Elements: Willful, Malicious, and Substantial Emotional Distress

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), the criminal statute’s “pattern of conduct or series of acts” means three or more incidents, and the 258E definition of harassment says the same thing in plain terms with its requirement of three or more acts. Each of those acts must be willful and malicious, and an act that lacks either quality does not count toward the required pattern of three. What the pattern must ultimately do to the target is where the civil and criminal standards part ways.

Willful. The conduct must be intentional. An act is willful when it is done intentionally and by design rather than by mistake or accident. Accidental contact, inadvertent communication, and conduct that flows from a shared obligation, such as a co-parent who must communicate about a child, do not satisfy the willfulness element when the conduct was not undertaken deliberately.

Malicious. The two statutes define malice in related but distinct ways, and counsel should hold the plaintiff or the Commonwealth to the correct one. For a 258E order, the statute defines malicious conduct as conduct characterized by cruelty, hostility or revenge. For a criminal § 43A charge, the conduct must be intentional and without justification or mitigation. 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), the Supreme Judicial Court gave the harassment definition a narrowing construction precisely so that it would not reach protected expression, which means aggressive but legitimate conduct falls outside it. 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 legitimate basis 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 requires that the pattern seriously alarm the target and be such as would cause a reasonable person to suffer substantial emotional distress. That test is objective, measured by the reasonable person, and it requires distress that is considerable in amount and markedly greater than the ordinary uneasiness of daily life, not merely discomfort, inconvenience, or annoyance. 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. Under Gassman v. Reason (89 Mass. App. Ct. 403, 2016), whether the plaintiff was placed in fear is judged subjectively, by what this plaintiff experienced, with no reasonable person overlay on the fear itself. Counsel who assumes the civil and criminal harm standards are the same will misjudge the case.

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 reaches only constitutionally unprotected speech and that speech criticizing an elected official cannot 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.
• Social media engagement with public content, including comments on posts that the account holder has made accessible to the public or a broad audience.
• 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. Under Virginia v. Black (538 U.S. 343, 2003) and Counterman v. Colorado (600 U.S. 66, 2023), a true threat requires proof that the speaker at least consciously disregarded a substantial risk that the statement would be understood as a serious threat of violence. Hyperbolic statements, statements made in obvious anger without any specific indication of violent intent, and statements that a reasonable person would understand as venting rather than threatening are not true threats.
• Incitement to imminent lawless action, meaning speech directed at producing immediate unlawful action that is likely to produce that action. Under Brandenburg v. Ohio (395 U.S. 444, 1969), abstract advocacy of illegal conduct is protected, and only speech directed at and likely to produce imminent lawless action falls outside First Amendment protection.
• Obscenity, as defined under the three-part test of Miller v. California (413 U.S. 15, 1973).
• Speech that is integral to criminal conduct, such as the communications that constitute solicitation, extortion, or blackmail.

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 relied upon by the Commonwealth constitutes protected expression or unprotected conduct.

Comments on a public figure’s public social media posts, meaning posts made accessible to the general public or to a large follower base, are engagement with content the author chose to make public. Responding to public content is the intended interaction model of every social media platform and is presumptively protected expression. For a social media comment to constitute malicious conduct under § 43A, it must go beyond engagement with public content to something directed at causing harm, such as a true threat, obscene content, or targeted abuse that carries no protected expressive character. After Bigelow, a comment that amounts to criticism of a public official or public figure cannot be counted toward a criminal harassment pattern at all.

The distinction between public and private conduct matters. A message sent to a person’s private inbox, a message sent to a person’s employer to characterize the person’s conduct, or a message to a person’s family member designed to damage the person’s relationships is more likely to satisfy the malice element than public commentary on a public platform. The line runs between engaging with a person in the public forums they have chosen to inhabit and targeting a person in private spheres in order to cause harm.

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 cases on protected speech rather than from any special emotional distress calculation. In Van Liew v. Stansfield (474 Mass. 31, 2016), the Supreme Judicial Court held that sharp and even caustic criticism of a local public official was core political speech that the First Amendment protects and that it could not constitute harassment under c. 258E. The Court reached the same conclusion for the criminal statute in Bigelow. A person who maintains a public presence, publicizes personal information to build an audience, and appears regularly at public events in a professional capacity has invited a level of public attention and engagement that a private individual has not.

This does not mean public figures lack protection under § 43A or 258E. A public figure who is threatened, stalked, or subjected to a targeted campaign of abuse is entitled to the same protection as anyone else. The point is narrower. Because the criminal standard asks what a reasonable person in the target’s position would experience, the setting matters. A broadcast journalist who has cultivated a public following and who encounters an attentive viewer at a public event she promoted to that audience stands in a different objective position from a private individual approached by a stranger who has been watching her. The reasonable person inquiry takes that context into account, and the protected speech cases decide the rest.

The public figure defense is strongest in a predictable set of circumstances. It is strongest when the alleged conduct occurred in settings the plaintiff chose to make public, when the conduct consisted of engagement with content the plaintiff made accessible to a broad audience, and when the plaintiff holds a professional role that involves regular public-facing interaction. It weakens when the conduct involved threats, when it involved private-sphere contact designed to harm the plaintiff’s relationships, or when it escalated after the plaintiff made clear that contact was 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 either the objective substantial emotional distress that a reasonable person would suffer under § 43A or the actual fear, intimidation, abuse, or property damage that 258E demands. Courts have been consistent in holding that these statutes were not written to reach 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 draws the line between the two. So does whether the conduct has a legitimate justification, and whether the pattern amounts to something a reasonable person would find genuinely threatening rather than merely persistent. 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 M.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.

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 constitutes protected expression. 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 with intent to harm.

Key Takeaways

• Criminal harassment under M.G.L. c. 265, § 43A requires three or more acts, each of which must be willful and malicious, and a pattern that seriously alarms the target and would cause a reasonable person to suffer substantial emotional distress.
• Malice requires conduct without legitimate justification, defined for a 258E order as conduct characterized by cruelty, hostility or revenge. Conduct with a legitimate purpose is not malicious even when it causes significant distress.
• The First Amendment protects public commentary, social media engagement with public content, negative reviews, protests, and government petitions even when the subject finds them deeply distressing. Only true threats, incitement, and other unprotected categories fall outside that protection.
• 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.
• Criticism of public officials and public figures is protected political speech under Van Liew v. Stansfield and cannot be counted as harassment. The objective reasonable person standard for criminal substantial emotional distress also takes the full context of the encounter into account.
• 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.

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 Rd., Suite 400A. Available 24 hours a day.

Related Resources

• Stalking and Criminal Harassment in Massachusetts (M.G.L. c. 265, §§ 43, 43A)
• Massachusetts 258E Harassment Prevention Orders
• Violation of a 258E Civil Harassment Prevention Order
• Massachusetts 209A Abuse Prevention Orders
• Violation of a 209A Abuse Prevention Order (M.G.L. c. 209A, § 7)
• Defending 209A and 258E Violations in Massachusetts
• 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