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

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

Two separate Massachusetts legal proceedings use the word “harassment” to describe conduct they address: the 258E civil harassment prevention order under M.G.L. c. 258E and the criminal harassment charge under M.G.L. c. 265, § 43A. They share a statutory framework, both require a pattern of willful and malicious conduct directed at a specific person that would cause a reasonable person substantial emotional distress, but they operate in different courts, at different burdens of proof, and with different consequences. And both are bounded by the First Amendment in ways that Massachusetts courts have articulated clearly and that defense counsel must understand and use.

The Statutory Framework: Civil vs. Criminal

The 258E civil standard requires the plaintiff to prove harassment by a preponderance of the evidence, the civil standard. A judge can issue a temporary order ex parte, without the defendant present, on an initial showing that harassment occurred and that the plaintiff faces a substantial likelihood of immediate danger. The defendant gets notice only after the order has issued. The extension hearing, typically ten days later, is where the defendant first appears and contests the order. The standard at the extension hearing remains a preponderance.

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. None of these protections apply 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 not be able 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 the civil 258E standard and the criminal § 43A standard require three elements for each of the three required acts: the conduct must be willful, malicious, and would cause a reasonable person substantial emotional distress. All three elements must be satisfied for each act individually. An act that satisfies two of the three does not count toward the required pattern of three.

Willful. The conduct must be intentional. Accidental contact, inadvertent communication, or conduct that results from a shared obligation (such as a co-parent who must communicate about a child) does not satisfy the willfulness element when the conduct was not undertaken deliberately.

Malicious. The conduct must be without legal justification and motivated by an intent to harm the specific person. This is the element that most commonly fails in cases involving aggressive but legitimate conduct. Under O’Brien v. Borowski (461 Mass. 415, 2012) and Commonwealth v. Kwiatkowski (418 Mass. 543, 1994), malice requires more than conduct that is unwelcome, offensive, or even deeply distressing. It requires conduct that is without legal justification and aimed at causing harm. A neighbor who reports a code violation, a consumer who posts a negative review, and a litigant who files a lawsuit are all engaging in conduct that may alarm and distress the recipient. None of them are engaging in malicious harassment because each has a legitimate legal basis for the conduct.

Substantial emotional distress. The standard is objective. Under Gassman v. Reason (90 Mass. App. Ct. 569, 2016), the question is what a reasonable person in the plaintiff’s position would experience, not merely what this particular plaintiff reports feeling. Substantial emotional distress means more than discomfort, inconvenience, or annoyance. It means distress of a severity that would cause a reasonable person significant psychological suffering. The objective standard accounts for the plaintiff’s specific circumstances, including whether the plaintiff is a public figure who has voluntarily cultivated public attention and interaction.

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 258E order rests on protected expression, it is constitutionally defective.

Protected speech includes:

• 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:

• True threats: 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 was at least reckless as to whether the statement would be understood as a serious threat. Hyperbolic statements, statements made in obvious anger without 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: 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. Only speech directed at and likely to produce imminent lawless action is 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, posts made accessible to the general public or to a large follower base, are engagement with content the post 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 content that is directed at causing harm: a true threat, obscene content, or content that amounts to targeted abuse without any protected expressive character.

The public vs. private distinction matters. A message sent to a person’s private inbox, a message sent to a person’s employer characterizing the person’s conduct, or a message to a person’s family member designed to harm the person’s relationships, these forms of contact are more likely to satisfy the malice element than public commentary on public platforms. The distinction is between engaging with a person in the public forums they have chosen to inhabit and targeting a person in private spheres to cause harm.

The Public Figure Defense

Under O’Brien v. Borowski (461 Mass. 415, 2012), the SJC recognized that the 258E analysis must account for the plaintiff’s voluntary choice to live a public life and to cultivate public attention. A person who maintains a public social media presence, publicizes personal information to build an audience, and regularly appears at public events in a professional capacity has accepted, as part of the public role, a higher level of attention and engagement from members of the public than a private individual would experience.

This does not mean public figures have no 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 any other person. But the objective reasonable person standard used to evaluate substantial emotional distress is calibrated to the plaintiff’s circumstances. A broadcast journalist who has cultivated a public following and who encounters an attentive viewer at a public event she has publicized to that audience is objectively in a different position from a private individual who encounters a stranger who has been watching them. The reasonable person standard recognizes this difference.

The public figure defense is strongest when: the alleged conduct occurred in settings the plaintiff chose to make public; the conduct consisted of engagement with content the plaintiff made accessible to a broad audience; the plaintiff has a professional role that involves regular public-facing interaction; and the conduct did not involve threats, private-sphere contact designed to harm the plaintiff’s relationships, or escalating conduct after the plaintiff communicated 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: willfulness, malice, and the kind of substantial emotional distress that a reasonable person would experience. Courts have been consistent in holding that the statutes were not designed to reach all uncomfortable social interactions.

A person who sends repeated emails requesting a professional relationship after receiving a denial is annoying. A person who shows up at someone’s workplace repeatedly after being asked not to is potentially dangerous. The line between the two is drawn by malice, by whether the conduct has legitimate justification, and by whether the pattern of conduct amounts to something that 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. For licensed professionals and non-citizens, stopping the case at this stage eliminates the licensing and immigration consequences that arraignment triggers.

When a case proceeds to arraignment and trial, the defense focuses on: the sufficiency of each alleged act under the willful, malicious, and substantial emotional distress standard; First Amendment challenges to acts that constitute protected expression; the credibility of the complainant and any inconsistencies in the account; and the absence of a qualifying pattern of conduct 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 independently satisfy the willful, malicious, and substantial emotional distress elements.
• Malice requires conduct without legal justification and with intent to harm. Conduct with a legitimate purpose is not malicious even if 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 First Amendment protection.
• A 258E civil order can issue at a lower burden of proof than a criminal § 43A charge. Losing a 258E hearing does not establish that criminal harassment occurred.
• Public figures accept a higher level of public engagement as part of their role. The objective reasonable person standard used to evaluate substantial emotional distress is calibrated to the plaintiff’s circumstances.
• 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 Boston Municipal Court. Contact Serpa Law Office at 617.936.0201 for a confidential consultation. Boston office: 20 Park Plaza #400A. Quincy office: 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