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 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 differ in the burden of proof, the relief available, and the findings required. The judge or jury in one proceeding is ordinarily not bound by the result in the other proceeding. After a conviction at a criminal trial, however, the judge in a later civil proceeding can bar the defendant from disputing the facts that the conviction established. The First Amendment limits both proceedings when the alleged acts are speech.

The 258E Harassment Prevention 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 the judge issues the temporary order.

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

Chapter 258E covers harassment by anyone. By contrast, the 209A restraining order (abuse prevention order) applies only to family and household relationships in Massachusetts domestic violence cases. A defendant who violates a 258E harassment prevention order after a judge issues the order commits a separate crime. Serpa Law Office addresses violations of 258E harassment prevention orders in detail on its page on violating a 258E harassment prevention order.

A judge who issues a 258E harassment prevention order may grant broad relief. 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 harassment prevention order can also impose firearms consequences on the defendant. 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 prevention 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.

For a second or subsequent offense, or a § 43A offense committed after a stalking conviction, the maximum fine is $15,000. The judge may impose imprisonment and a fine together. G.L. c. 265, § 43A(c).

Section 43A also contains a second, separate offense. Under subsection (b), a single act of knowingly distributing intimate visual material of an identifiable person, including material produced by digitization, is a crime with its own penalties.

The distribution must cause the person depicted physical or economic injury or substantial emotional distress. The Commonwealth must prove that the defendant distributed the material with intent to harm, harass, intimidate, threaten, coerce, or cause substantial emotional distress.

The Commonwealth may instead prove that the defendant recklessly disregarded the likelihood of any of those harms to the person depicted, the depicted person’s lack of consent, and the depicted person’s reasonable expectation that the material would remain private. Serpa Law Office explains the subsection (b) offense and the computer-generated deepfake imagery that the offense covers on the page on Massachusetts revenge porn and nonconsensual intimate images.

The defendant in a 258E harassment prevention order case has real procedural rights at the civil hearing. A defendant who is told otherwise may fail to use those rights. 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 courts developed the rules on the right to be heard, cross-examination, and review of affidavits for hearings under c. 209A. The SJC applies the same rules to hearings under c. 258E. F.K. v. S.C., 481 Mass. 325 (2019).

The defendant keeps the privilege against self-incrimination at the civil hearing. The judge may draw an adverse inference from the defendant’s silence, but the plaintiff cannot meet the burden of proof with the adverse inference alone. Frizado, 420 Mass. 592. A client who faces a parallel criminal prosecution must decide whether to testify at the civil hearing. Remaining silent protects the client’s defense in the criminal case, but the judge in the civil case may draw an adverse inference from the silence.

A defendant in a 258E harassment prevention order case may appear with retained counsel. The defendant may appeal a 258E harassment prevention order to the Appeals Court as of right, even after the order expires. Seney v. Morhy, 467 Mass. 58 (2014).

Only the criminal case gives the defendant the protection of 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. The rules of evidence need not be followed at the civil hearing, provided there is fairness in what evidence is admitted and relied on. Frizado, 420 Mass. 592.

Judges frequently issue 258E harassment prevention orders in cases where a criminal harassment charge would not result in a conviction. A plaintiff may prove conduct by a preponderance of the evidence at a civil hearing. The Commonwealth 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 civil hearing on a 258E harassment prevention order should not assume that a criminal harassment charge will be filed or will end in a conviction. The civil proceeding and the criminal case are separate, with different standards.

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

The criminal harassment statute and Chapter 258E contain the same basic elements. The result of a harassment case often depends on a precise application of each element. 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 definition of harassment in Chapter 258E expressly requires three or more acts. Each act must be willful and malicious. An act that lacks either quality does not count toward the three required acts.

Courts apply specific rules when counting the acts. One continuous act cannot be parsed into its constituent parts to make three acts. A single act is also 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. Wilful conduct requires no evil intent, ill will, or malevolence. Commonwealth v. McDonald, 462 Mass. 236, 242 (2012). Accidental contact and inadvertent communication do not satisfy the element of willfulness. A client who says they meant nothing bad by the act is talking about malice, not willfulness. On willfulness, the judge or jury asks only whether the act was deliberate.

Malicious. The criminal harassment statute and Chapter 258E define malice differently. Counsel should hold the plaintiff or the Commonwealth to the correct definition. For a 258E harassment prevention 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.

In O’Brien v. Borowski, 461 Mass. 415 (2012), abrogated on other grounds by Seney v. Morhy, 467 Mass. 58 (2014), the Supreme Judicial Court construed the harassment definition narrowly to exclude protected expression. As a result, the harassment definition does not cover aggressive but legitimate conduct.

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. The co-parent, neighbor, consumer, and litigant are not engaged in malicious harassment, because each has a legal justification for the conduct.

The required harm. The criminal harassment statute and Chapter 258E differ more on the required harm than on any other element. The difference between the two definitions of harm is easy to get wrong. On a criminal § 43A charge, the Commonwealth must prove two harm elements. The pattern must have seriously alarmed the targeted person. Serious alarm is 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).

The judge or jury measures serious alarm against the whole pattern of conduct rather than incident by incident. Commonwealth v. Johnson, 470 Mass. 300 (2014). The targeted person must personally experience the serious alarm. Distress at what a spouse received is derivative. The SJC reversed a criminal harassment conviction on the ground that the distress was derivative. Commonwealth v. Bigelow, 475 Mass. 554 (2016).

A 258E harassment prevention order requires a different kind of harm. Under Chapter 258E, the three acts must be committed with intent to cause, and must in fact cause, fear, intimidation, abuse, or damage to property. 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 to fear.

The judge decides whether the plaintiff was in fact placed in fear by a subjective standard, based on what the plaintiff experienced. The judge does not apply a reasonable person standard to the fear itself. Petriello v. Indresano, 87 Mass. App. Ct. 438 (2015); Gassman v. Reason, 90 Mass. App. Ct. 1, 7 (2016).

The plaintiff’s actual fear does not by itself establish harassment when the alleged acts are speech. Speech alleged to be harassment must independently qualify as constitutionally unprotected. The judge or jury decides whether words are a true threat by an objective standard, based on what the words reasonably convey to the recipient in the circumstances. Commonwealth v. Cruz, 495 Mass. 110 (2024). A plaintiff’s sincere fear of protected speech is not a basis for an order or a conviction. Counsel who assumes the civil and criminal harm standards are the same will misjudge the case.

What Counts as an Act

Conduct that is not speech can also count as an act of harassment. Concealing a GPS tracking device on a person’s vehicle is an act under § 43A. Concealing the device qualified as an act 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. Acts of harassment can also be directed at more than one person at the same time. Brennan, 481 Mass. 146.

What the First Amendment Protects and What It Does Not Protect

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 standard for a 258E harassment prevention order and the criminal harassment statute, § 43A, must be applied in a manner consistent with the First Amendment and Article 16. A harassment prosecution or a 258E harassment prevention order that is based on protected expression is constitutionally defective.

In Commonwealth v. Bigelow, 475 Mass. 554 (2016), the Supreme Judicial Court held that § 43A covers only constitutionally unprotected speech. The Court also held 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 go to 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 of unprotected speech are not identical for a 258E harassment prevention order and a criminal § 43A charge. For a 258E harassment prevention 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 § 43A also covers other well-defined and limited categories of unprotected speech. The courts have applied the categories of speech integral to criminal conduct and defamation in criminal harassment cases. 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 courts have 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 of a mental state. The Commonwealth must prove beyond a reasonable doubt that the defendant consciously disregarded a substantial risk that the communication would be viewed as threatening violence. The SJC vacated the defendant’s conviction because the jury received no instruction on conscious disregard.

The objective test still applies alongside the mental state requirement. The judge or jury decides whether words are a true threat by what the words reasonably convey to the recipient. In Cruz, the SJC also distinguished two mental states. Intending to deliver a statement to a person is not the same as understanding the threatening nature of the statement.

No Massachusetts appellate court has yet applied Counterman to criminal harassment under § 43A. The question whether Counterman applies to § 43A is open. The issue arises in any § 43A prosecution based on speech, because under Bigelow the question whether the speech is protected or unprotected is a fact question within the first element. The defense should request an instruction requiring the Counterman mental state whenever the Commonwealth relies on statements offered as true threats to prove the pattern. The defense should also preserve the issue if the judge refuses the instruction.

Social Media and the First Amendment in Harassment Cases

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

Courts do not decide whether a statement is a true threat by the medium the speaker used. Courts decide whether a statement is a true threat from the content and context of the statement. 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.

The defendant’s conduct included 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.

A defendant cannot avoid liability for harassment by posting harassing statements publicly. 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. In practice, courts still distinguish between public commentary and private-sphere targeting. 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 private-sphere targeting rather than public commentary. Private-sphere targeting 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. The protected speech cases support the defendant’s position. 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 that criticism of an elected official’s performance cannot form the basis of a criminal harassment conviction.

Public figures keep the same protection against harassment that 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 judge or jury still considers the setting of the conduct when applying the objective part of the criminal harm standard. What would cause a reasonable person substantial emotional distress depends on context. Under Salvatore, a court views statements in the context of the conduct around them. The public figure defense is less likely to succeed when the conduct includes threats, private-sphere contact, or escalation after a clear statement that contact is unwanted.

The Difference Between Annoying and Criminal

Under Massachusetts harassment law, annoying, offensive, and even deeply distressing conduct is not automatically criminal. The harassment statutes require willfulness, malice, and a specified harm. Under § 43A, the harm is serious alarm to the targeted person together with distress that a reasonable person would suffer. Under Chapter 258E, the harm is actual fear, intimidation, abuse, or property damage. The courts have been consistent that the harassment 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.

The legal difference between the annoying person and the potentially dangerous person depends on malice, on whether the conduct has a legal justification, and on whether a reasonable person would find the pattern 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.

A Person 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. No arraignment, public CORI entry, or criminal record results from an application that the clerk-magistrate denies. Serpa Law Office’s Massachusetts clerk-magistrate hearing FAQ explains what happens at the clerk-magistrate hearing and how counsel prepares for the hearing.

A licensed professional whose case ends at the clerk-magistrate hearing avoids the licensing consequences of an arraignment. A non-citizen whose case ends at the clerk-magistrate hearing faces no conviction or continuance without a finding, the obvious and usually only risk to an immigration petition or application. Disclosure of the incident and an officer’s questions at an interview about the conduct described in the complaint application or police report can still create obstacles of their own.

An immigration lawyer should review the exact question, the client’s status, and the court record before the client files a petition or sits for an interview. Serpa Law Office addresses the licensing and immigration consequences of an arraignment in detail in its licensed professional criminal defense FAQ.

One procedural rule from Salvatore applies at the clerk-magistrate stage. A judge ordinarily reviews a motion to dismiss the complaint on a record that includes any testimony the clerk-magistrate heard before finding probable cause. 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 move to dismiss the complaint must preserve the record at the clerk-magistrate hearing.

A common question is whether the complaining witness can drop the charge. The answer in a criminal harassment case is the same as in any Massachusetts criminal case. The Commonwealth, not the complainant, decides whether to drop the charge.

In a case that proceeds to arraignment and trial, the defense focuses on several issues. The defense tests the sufficiency of each alleged act under the willful, malicious, and harm requirements. The defense raises First Amendment challenges to any act that is protected expression. After Counterman, the defense also presses the mens rea question. The defense probes the credibility of the complainant and any inconsistencies in the complainant’s account. The defense also challenges the Commonwealth’s proof 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 the targeted person 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 harassment prevention order, malice is conduct characterized by cruelty, hostility or revenge. For a § 43A charge, malice 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 are not protected by the First Amendment
• 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 the Counterman rule to the threats statute in Commonwealth v. Cruz, 495 Mass. 110 (2024). The defense should raise the open question whether the Counterman rule applies to § 43A
• A judge can issue a 258E harassment prevention order on a lower burden of proof than the burden that applies to a criminal § 43A charge. Losing a hearing on a 258E harassment prevention order 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. The defense preserves 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

• The Effort to Expose Cornell’s Jane Doe: Doxing, Misogyny, and the Law
• Massachusetts stalking defense under M.G.L. c. 265, § 43
• Massachusetts 258E Harassment Prevention Orders
• Violation of a 258E Harassment Prevention 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