In a recent case, the Massachusetts Supreme Judicial Court addressed the issue of a civil harassment prevention order. A high school student uploaded to social media a rap song, in which he made threats against fellow students.

The Background

The parties in the case, F.K. v. S.C., were seniors at Lawrence High School. Although the defendant and the plaintiffs attended class together, they had little to no contact outside of class. Nonetheless, the defendant, an aspiring rapper, posted a “freestyle” rap song he had made to SoundCloud, an internet site that allows the sharing of music between members. The song contained negative references to the plaintiffs. It also contained direct threats of violence and sexual assault against them and their families. The defendant also shared the song on social media. As the song made its rounds, the plaintiffs became aware of the song. They then brought it to the attention of the high school.

The following day, after meetings with high school officials, the defendant was suspended from school for three days. He was also removed from his position as captain of an athletic team. Though he acknowledged that he “messed up,” he also told the officials that he had been freestyling, wanted to sound like a rapper, and did not realize that his song would be taken seriously as a threat.

What Constitutes Harassment?

Massachusetts defines harassment as “(i) three or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property; or (ii) an act that: (A) by force, threat or duress causes another to involuntarily engage in sexual relations; or (B) constitutes a violation of section 13B, 13F, 13H, 22, 22A, 23, 24, 24B, 26C, 43 or 43A of chapter 265 or section 3 of chapter 272.”

An issue in this case was whether the defendant committed three separate acts of willful and malicious conduct. After all, the defendant posted only one song directed at the plaintiffs. The trial judge concluded that “the individual statements within the song” constituted “separate acts” of harassment. The fact that multiple separate people heard it added to the harassment. The defendant’s posting of the song on various social media accounts also constituted separate acts of harassment. Various temporary orders were entered, then extended, after the trial judge ruled that the defendant’s actions constituted civil harassment. Ultimately the defendant appealed the orders, and the Supreme Judicial Court transferred the case on its own.

The Final Judgment

The High Court reversed the trial judge’s decision. The Court held that this case did not satisfy the requirement of multiple instances of harassment. The defendant engaged in one continuous act, rather than multiple acts. “By posting the song to SoundCloud, the defendant made it available to SoundCloud members. When he linked the song to his Snapchat account, he merely reshared it with SoundCloud members who were also members of the defendant’s specific Snapchat network of ‘friends,’” the Court noted. “He accomplished the two acts in close succession, and removed the song from the Internet within two hours of initially posting it. We are satisfied that when the defendant posted the song to Soundcloud and linked it to his Snapchat account, he engaged in one continuous act.”

The Court also noted that the evidence of multiple witnesses to the song – along with notice to the defendant from multiple people that they heard the song – likewise did not transfer the single act of posting the song into multiple acts, as required by the civil harassment statute. Lacking the requisite three acts of harassment, the Court held that a civil harassment prevention order could not issue. The Court remanded the case to the District Court, vacating and setting aside the original order.

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