Showing posts with label harassment. Show all posts
Showing posts with label harassment. Show all posts

Sunday, February 7, 2021

Birth announcement: Ontario court is reluctant parent of new tort of 'internet harassment'

UNESCO image CC BY-SA 4.0
The tort world is abuzz with a court decision in Ontario that has birthed a new common law cause of action for online harassment.

The facts that gave rise to the case were extreme.  The defendant was the subject of a New York Times story (subscription) on January 30 about the difficulty of remediating online reputational harm.  The perpetrator of the harassment targeted some 150 victims, including children, spat accusations ranging from fraud to pedophilia, and was adjudged a vexatious litigant and jailed for contempt of court.  Floundering in a dearth of effective enforcement mechanisms, the Ontario Superior Court of Justice (para. 171) recognized a "tort of harassment in internet communications" that means to be narrow:

where the defendant maliciously or recklessly engages in communications conduct so outrageous in character, duration, and extreme in degree, so as to go beyond all possible bounds of decency and tolerance, with the intent to cause fear, anxiety, emotional upset or to impugn the dignity of the plaintiff, and the plaintiff suffers such harm.

The case is Caplan v. Atas, 2021 ONSC 670 (Ont. Super. Ct. Jan. 28, 2021).  Jennifer McKenzie and Amanda Branch at Bereskin & Parr have commentary.  Hat tip to Dan Greenberg for bringing the New York Times story to my attention.

Tuesday, January 31, 2017

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.

Tuesday, October 4, 2016

Mass. SJC refuses worker-union privilege in civil discovery



The Massachusetts Supreme Judicial Court refused to find a worker-union evidentiary privilege in a civil lawsuit by an educator against her school, affirming the Superior Court.

Nancy Chadwick, a Massachusetts teacher at Duxbury High School and former president of the Duxbury Teachers Association, alleged bullying and harassment by a direct supervisor, leading to her dismissal.  She sued for discrimination and retaliation in December 2014.  At issue in discovery were 92 emails sought by the defendant and alleged by the plaintiff to be protected by a union-union member privilege.

The SJC, per Justice Hines, refused to recognize the privilege under Massachusetts labor law or in common law.  The Court recognized that labor statutes at both the state and federal level, the latter per National Labor Relations Board precedent, can privilege communication by union members.  But looking to the apparent intent of the legislature in Mass. Gen. L. ch. 150E, the Court reasoned that the scope of that privilege is the protection of collective bargaining rights, not the furtherance of a civil lawsuit.

In the common law analysis, the Court admonished that its power to recognize privilege under Evidence Rule 501 to be “exercised sparingly.”  The Court observed that the Supreme Court of Alaska recognized a broad privilege under state statute in 2012.  But that is the minority position.  New Hampshire declined to find a privilege in grand jury proceedings in 2007.  And a California appellate court opined in 2003 that the authority to create such a privilege should rest with the legislature.

The SJC agreed that “the Legislature may be in a better position to decide whether to create a privilege and, if so, to weigh the considerations involved in defining its contours.”  McCormick on Evidence (3d ed. 1984) was quoted in a parenthetical: “It may be argued that legitimate claims to confidentiality are more equitably received by a branch of government not preeminently concerned with the factual results obtained in litigation, and that the legislatures provide an appropriate forum for the balancing of the competing social values necessary to sound decisions concerning privilege.”  Moreover, the SJC found “speculative” any harm that might result to the plaintiff for the court’s refusal to recognize the privilege.

In a footnote, the SJC clarified that its decision did not diminish inherent judicial powers to award protective order, as under civil procedure rule 26(c).

The decision is significant in part because Massachusetts is regarded as a state (or commonwealth) friendly to organized labor.  The SJC decision asserts a conservative view of separated powers such as to interpret statute and to evolve the common law under rule 501.  The latter especially has implications for other potential common law privileges, such as the journalist’s privilege.  Also, because the decision arises in the context of public employment, the lack of union privilege may have implications for construction of sunshine laws that incorporate common law and “other law” confidentiality by reference.

The case is Chadwick v. Duxbury Public Schools, no. SJC-12054 (Oct. 4, 2016) (PDF).