Please Stand Behind the White Line: Harassment and free speech on the byway

A decision yesterday from the Massachusetts Appeals Court, V.J. v. N.J., 2017 Mass. App. LEXIS 6 (Mass. App. Ct. Jan. 30, 2017) (Mass.gov (temporary); Lexis with registration) pitted civil harassment against free speech in the case of a transit-service bus driver who felt threatened by a passenger’s unwanted advances and irate reaction to being rebuffed.  The court, per Justice William Meade, affirmed extension of a civil protection order.  Justice James Milkey dissented.  Meade is a former ADA and AAG.  Milkey is a former environmental lawyer who litigated on behalf of the Commonwealth to compel the U.S. Environmental Protection Agency to regulate greenhouse gases.

The facts engender sympathy for the position of the plaintiff, a bus driver for the Massachusetts Bay Transportation Authority (MBTA).  The defendant passenger came on to her a number of times, and she rebuffed his advances.  She ultimately complained to her supervisor upon an incident when the defendant “approached her from behind and grabbed her across her chest in a ‘bear hug,’” while the plaintiff was in full MBTA uniform.  When plaintiff thereafter spurned a tendered apology and eschewed further communication, defendant became verbally abusive, hurling derogatory epithets, “‘fat bitch’” and “‘ghetto bitch.’”  He was removed by police. 

Plaintiff thereafter for a time denied defendant access to the bus.  In a subsequent encounter, defendant did board the bus and was again removed by police after he “went on a rant about the impropriety of his being denied access,” told plaintiff “he would be there every day to inconvenience her,” and refused to leave the bus unless plaintiff called police.

Civil harassment has a curious history in U.S. law and an unsettled relationship with the freedom of speech.  Statutes of various kinds are commonplace in the states.  They accord with popular wisdom about what’s acceptable and what’s not in ordinary social interaction.  

Considering that the United States is a common law jurisdiction, though, harassment stands out as an example of the common law’s sometimes failure to change with the times.  Statutory harassment as an intentional tort might incorporate separate instances of common law assault, battery, intentional infliction of emotional distress (IIED), or invasion of privacy, but does not have to.  In some models, harassment can occur without the imminence of contact that assault requires and without the physical contact that battery requires.  Harassment might be accomplished through invasion of privacy—disclosure, intrusion, even misappropriation—but might not be. 

Instead, harassment statutes usually articulate a unique theory of intentional tort, invariably characterized by repetition.  The common law’s notorious insensitivity to gender inequality, both historic and extant, probably has a lot to do with its failure to evolve a response to harassment as a social problem, considering that women are disproportionately victimized.

Especially when harassment is not also assault or battery, it usually is accomplished by expression, written or verbal, so the freedom of speech is implicated.  The facial constitutionality of criminal and civil prohibitions on harassment is usually taken for granted.  But why that should be so is not so plain.

Harassment didn’t make the U.S. Supreme Court’s historic list of “non-speech” or unprotected speech categories in First Amendment law, alongside the likes of obscenity, “fighting words,” threats, and incitements to violence.  A free speech absolutist might well argue that harassment prohibitions, however fashionable, are, or should be, unconstitutional.  The opposite position is to be permissive of new-category recognition and carve out a harassment exception, invoking the muse of “I know it when I see it.”  

A typical and nuanced approach tries to jam harassment into existing non-speech categories, especially fighting words or “true threat” doctrine.  The fighting-words fit requires a touch of re-engineering, as the category usually requires the same imminence that assault does.  True threat has some more flexibility to it, owing to its relatively modest accretion of definitive case law to date.  But the notion of “threat” still seems to say something about urgency that the no-less-offensive, persistent grating of harassment might not quite equal.

By statute, a Massachusetts civil protection order requires harassment to be expressed in three instances.  Indeed, repetition is usually the linchpin that eases a court’s conscience in letting harassment slide under the First Amendment radar.  Massachusetts courts look for three malicious acts, “‘characterized by cruelty, hostility or revenge,’” and producing in sum, “‘fear, intimidation, abuse or damage to property.’”  This approach is thought to thread the “true threat” needle to the First Amendment’s satisfaction.

Manifesting the court’s sensitivity to the wakefulness of the free speech watchdog, repetition became precisely the sticking point between majority and dissent in V.J. v. N.J.  Justice Milkey disputed the viability of the third encounter between plaintiff and defendant as sufficient to support the three encounters required to extend the protection order.  Recall that the defendant said he would not leave the bus unless plaintiff summoned police.  Acknowledging a close question, the majority reasoned its way from intransigence to physical threat:

Although he did not directly threaten the plaintiff with physical violence, he nonetheless threatened that he would continue confronting her in this same manner, i.e., ranting about being denied access, and that she would need continuous police intervention to remove him from the bus. It was his stated goal that on a daily basis he would inconvenience her as she had him. This suffices to demonstrate the defendant’s malicious intent, characterized by cruelty, hostility, or revenge, to intimidate the plaintiff and to place her in fear of physical harm.

Justice Milkey disagreed.  A police summons might have threatened a physical encounter with police, he reasoned, but not with plaintiff.  The pledge to return daily was a threat of annoyance, not violence.  Quoting the U.S. Supreme Court in Virginia v. Black (2003), Milkey defined a “true threat” as “a serious expression of an intent to commit an act of unlawful violence to a particular individual.”  Milkey found no physicality in the defendant’s expression vis-à-vis the plaintiff.  Moreover, Milkey indulged the defendant’s theory that his expression constituted protest of his exclusion from the bus by a public official, in essence, a form of political expression, not “motivated by ‘cruelty, hostility, or revenge.’”

At first blush, the dissent seems hyper-technical and cringeworthily insensitive to what this bus driver had to endure—doubtless amid the myriad daily struggles of the job.  But one must appreciate that Milkey was motivated by a defense of free speech.  He did not condone the defendant’s conduct, and he expressly disavowed opinion on the propriety of the defendant’s exclusion from the bus.  Myself, I am inclined to succumb to the overwhelming social appeal of the plaintiff’s position in this case.  But I think it fair to say that dissenting required a measure of intellectual courage.