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.
