By Robert A. Bertsche
In the midst of a presidential campaign season that is notable for its uncivil discourse, the Massachusetts Supreme Judicial Court last month issued a ruling confirming what we already knew: that “crooked Hillary” and “lyin’ Ted” don’t have a legal claim against Donald Trump for name-calling.
No, Clinton and Cruz did not take time from their campaigns to file defamation claims against Donald Trump. The SJC’s ruling arose out of a nasty dispute between a Chelmsford planning board member, and a local businessman and political gadfly who allegedly called her uneducated, stupid, corrupt, and a liar — the sort of language that has become standard fare for the 2016 presidential race.
“These remarks about a local public official constituted political speech and were at the core of the speech that the First Amendment to the United States Constitution protects,” Justice Margot Botsford wrote in the SJC’s March 30, 2016, decision in Van Liew v. Stansfield. “Although these types of public accusations may be ‘vehement, caustic, and sometimes unpleasantly sharp,’ . . . this form of political speech must remain ‘uninhibited, robust, and wide-open.'”
Not only is such “political hyperbole” constitutionally protected, the court said, but suing over it could itself get a thin–skinned politician in legal hot water. The court rejected the aggrieved pol’s attempt to dismiss her detractor’s claims seeking money damages for her “abuse of process” and “malicious prosecution.”
The Chelmsford case arose after Planning Board member Colleen Stansfield decided she had had enough of the insults she was receiving from selectman candidate Roland Van Liew. She sought a civil harassment prevention order against Van Liew under Mass. Gen. Laws c. 258E, § 3, alleging that Van Liew had sent several public mailings calling her corrupt and a liar; had repeated those accusations during a recall election; and had screamed at her and called her “terrible names” in a phone call.
A sympathetic district court judge initially entered an order that went so far as to prohibit Van Liew from mentioning Stansfield’s name in any “email, blog, [T]witter or any document through [I]nternet, television show, ad or otherwise.” But another judge vacated the order two weeks later, and the Supreme Judicial Court affirmed this action.
The SJC noted that a party seeking a civil harassment prevention order under Massachusetts law must demonstrate “[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 that does in fact cause fear, intimidation, abuse or damage to property.” For speech to constitute harassment, it must consist of either “fighting words” or “true threats.” “Fighting words” are a “direct personal insult addressed to a person” that is “inherently likely to provoke violence,” the court said, citing its 2012 decision in O’Brien v. Borowski. “True threats” are either “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 such harm now or in the future.”
The sort of name-calling in which Van Liew allegedly engaged — calling Stansfield stupid, or a liar, or corrupt — does not rise to the level of “fighting words” or “true threats,” the SJC ruled. Moreover, the court said, even fighting words and true threats can’t lead to a harassment prevention order unless three other conditions are met. First, each of the comments “must have been made with an intention to cause . . . abuse, fear, intimidation, or damage to property.” Second, the comments as a whole must have indeed caused “abuse, fear, intimidation, or damage to property.” Third, the requisite “fear” must be “fear of physical harm or fear of physical damage to property.” Mere “fear of economic loss, of unfavorable publicity, or of defeat at the ballot box” is not enough.
Uncivil though they may have been, Van Liew’s remarks didn’t rise to the necessary level to support a harassment prevention order, the SJC said. (The court assumed, for purposes of its decision, that another remark allegedly made by Van Liew — that he was “coming after” Stansfield — might qualify as a single act of harassment. But the harassment statute requires three such acts before an injunction may issue.)
The story doesn’t end there, because Van Liew* did not merely oppose Stansfield’s attempts to obtain a restraining order against him. He also fought back, suing Stansfield for malicious prosecution and abuse of process. She responded by invoking the Massachusetts Anti-SLAPP statute, G.L. c. 231, § 59H, which provides for expedited dismissal of certain claims that amount to “strategic lawsuits against public participation.”
Stansfield argued that by going to court for a civil harassment order, she was exercising her right of petition under Massachusetts law. The Supreme Judicial Court agreed with her on that point, but said that her petitioning activity was not protected by the anti-SLAPP statute because her claims were “devoid of any reasonable factual support or any arguable basis in law.” The SJC also said Stansfield’s harassment claim had caused Van Liew “actual injury,” in the form of attorney’s fees.
So this case is not over. Van Liew’s claims against Stansfield can move forward to discovery and trial. And the First Amendment right to sling mud remains secure — for local and national candidates alike.
*Note to astute students of Massachusetts defamation law: Yes, this is the same Van Liew who last year found himself on the wrong end of a $2.9 million jury award in a defamation case brought against him by a Chelmsford selectman. Van Liew has appealed that verdict.
Robert A. Bertsche is a member of the New England First Amendment Coalition’s board of directors and an attorney at Boston-based Prince Lobel Tye. He can be reached at rbertsche@princelobel.com.
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