Guideline 3:05A
If the conduct at issue is speech alone, it is critical for the judge to examine the context and content of the speech, as constitutionally protected speech cannot be an “act” on which to base a c. 258E order. To serve as a basis for a harassment prevention order, the speech must constitute either a true threat or fighting words. A “true threat” includes direct threats of imminent physical harm or words or actions that, taking into account the context in which they arise, cause the victim to fear harm now or in the future and show the speaker’s intent to cause such fear. “Fighting words” are face-to-face personal insults that are so personally abusive that they are plainly likely to provoke a violent reaction and cause a breach of the peace. Fighting words must (1) be a direct personal insult addressed to a person; and (2) must be inherently likely to provoke violence. See O’Brien v. Borowski, 461 Mass. 415, 423 (2012).
Commentary
True Threats
“[T]o support an order under c. 258E, the true threats cannot be threats to do just any kind of harm; they must be intended to cause fear of physical harm or physical damage to property. Even threats intended to do anything else to the specific individual will not amount to predicate acts for purposes of c. 258E, notwithstanding the language of the statute, and only a threat intended to cause fear of physical harm (or physical property damage) can qualify as one of the three predicate acts for purposes of c. 258E. This is true even when the act is not characterized as one intended to cause ‘fear’ (i.e., of physical harm), but as one intended to cause ‘intimidation’ or ‘abuse’ as well, even though the colloquial meaning of those two words is dramatically broader.” A.R. v. L.C., 93 Mass. App. Ct. 758, 760–61 (2018). It should be noted that there may be some speech by which the speaker acts “at least recklessly — that is, the person ‘is aware ‘that others could regard his statements as’ threatening violence and ‘delivers them anyway.’” Commonwealth v. Cruz, 495 Mass. 110, 113 (2024), quoting Counterman v. Colorado, 600 U.S. 66, 74 (2023). In any event, the judge must find that the threat was willful and malicious. See Commentary to Guideline 3:05 Standard and Burden of Proof for c. 258E Order. “Intimidation is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.” Id. (internal citation omitted). “Where the acts are aimed at a specific person, an intent to cause ‘abuse’ is certainly consistent with a true threat, because abuse is defined in [c.258E] as ‘attempting to cause or causing physical harm to another or placing another in fear of imminent serious physical harm.’ G. L. c. 258E, § 1.” Id. (internal citation omitted). See also Commonwealth v. Bigelow, 475 Mass. 554, 562 (2016) (discussing true threats and fighting words in the context of criminal harassment prosecution); O’Brien v. Borowski, 461 Mass. 415, 425 (2012) (discussing true threats and fighting words in the context of a 258E order); J.C. v. J.H., 92 Mass. App. Ct. 224, 228-229 (2017) (when taken in context, threat that plaintiff “should be scared,” that she would “pay the consequences”, warning that this would “end badly,” and sexualized messages were true threats); V.J. v. N.J., 91 Mass. App. Ct. 22, 26-27 (2017) (defendant’s stated goal of having a daily confrontation with bus driver on bus that would require police removal fell within definition of true threat); A.T. v. C.R., 88 Mass. App. Ct. 532, 536 (2015) (threat to make plaintiff’s life “a living hell” was a true threat).
Fighting Words
Fighting words are face-to-face “‘personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction.’” Barron v. Kolenda, 491 Mass. 408, 423 n.15 (2023), citing Cohen v. California, 403 U.S. 15, 20 (1971). Although courts have not yet examined whether racial, ethnic, or sexual orientation epithets are “fighting words” in the context of G.L. c. 258E, such epithets have been found to be fighting words that support a conviction of disorderly conduct. See Commonwealth v. Dussault, 76 Mass. App. Ct. 1101 (2009) (unpublished). See also T.W. v. R.H., 99 Mass. App. Ct. 1122 (2021) (unpublished) (defendant’s comment that working with him would be the plaintiff’s “biggest regret” did not amount to true threats or fighting words, but barging past plaintiff in fit of anger qualified as abuse); B.P. v. L.S., 99 Mass. App. Ct. 1124 (2021) (unpublished) (defendant’s statement that he would “make [her] famous” and “get [her]” constituted harassment, but threats of legal action or conditional statements were not true threats).
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| Last updated: | October 20, 2025 |
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