O'BRIEN v. Borowski
461 Mass. 415
| Mass. | 2012Background
- Borowski sought a harassment prevention order under G. L. c. 258E against O'Brien after three incidents involving middle-finger gestures and alleged pursuit.
- The District Court issued a temporary order; Borowski’s hearing occurred on September 3, 2010, and the judge extended the order to September 2, 2011.
- O'Brien filed a petition under G. L. c. 211, § 3 to vacate the order; the single justice reserved and reported for decision by the full court.
- The order expired September 2, 2011, and Borowski did not seek extension; the case became moot.
- The court addresses (a) whether c. 258E is constitutionally overbroad, (b) application to O'Brien's conduct (middle finger gestures), and (c) proper avenue for review and mootness remand.
- Because the case is moot, the court vacates the order and directs that future harassment-order reviews under c. 258E go to the Appeals Court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is c.258E overbroad on its face? | O'Brien: statute regulates protected speech. | Borowski: statute narrowly targets true threats and fighting words. | Not overbroad under narrowing construction. |
| Does c.258E apply to protected speech in O'Brien's conduct? | Middle finger and conduct are protected speech not constituting harassment. | Context with pursuit constitutes true threats/fighting words. | Speech restricted only to true threats/fighting words with fear of physical harm or property damage. |
| Does the three-act, intentional pattern requirement satisfy First Amendment concerns? | Three acts with intent to cause fear should be examined for constitutionality. | Elements ensure slide from protected speech to unprotected true threats. | Elements align with true-threat framework; not overbroad given intent and causation requirements. |
| Is the case moot, and if so, what is the remedy? | Remedy may proceed notwithstanding mootness due to public importance. | Case moot; no live dispute to decide. | Case moot; remanded to vacate order; future reviews directed to Appeals Court. |
| What is the proper construction of 'fear' in c.258E, § 1? | Fear could encompass nonphysical distress. | Fear limited to fear of physical harm or property damage. | Fear narrowed to physical harm or property damage; not expansive to protected emotions. |
Key Cases Cited
- Welch, 444 Mass. 80 (2005) (true threats analysis for criminal harassment)
- Chou, 433 Mass. 229 (2001) (true threats in sexually explicit language context)
- Black, 538 U.S. 343 (2003) (true threats; intent to intimidate)
- Cassel, 408 F.3d 622 (9th Cir. 2005) (true threats framework in harassment context)
- Commonwealth v. A Juvenile, 368 Mass. 580 (1975) (fighting words framework in Massachusetts)
- Bulldog Investors Gen. Partnership v. Secretary of the Commonwealth, 460 Mass. 647 (2011) (overbreadth/constitutional scope considerations)