From E.B. v. J.R., decided Aug. 20 by Massachusetts Appeals Court Justices Sabita Singh, Rachel Hershfang, and Chauncey Wood:
The defendant appeals from harassment prevention orders issued pursuant to G. L. c. 258E (258E orders), by a judge of the District Court, requiring the defendant, among other things, to stay away from a city zoo where she had regularly protested the treatment of animals in its care. The plaintiff, a veterinarian who worked at the zoo, sought and obtained an ex parte 258E order against the defendant, which was later extended following a hearing after notice….
When reviewing whether the evidence was sufficient to support the issuance [or extension] of a 258E order, we consider [consistently with the statutory requirements] whether, "by a preponderance of the evidence, together with all permissible inferences," the judge could have found "that the defendant had committed '[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 [did] in fact cause fear, intimidation, abuse or damage to property.'" …
Where the harassing acts consist of speech, each act must be the type of speech that is not protected by the First Amendment to the United States Constitution, i.e., generally either "true threats" or "fighting words." True threats include "direct threats of imminent physical harm" and "words or actions that—taking into account the context in which they arise—cause the victim to fear such [imminent physical] harm now or in the future and evince intent on the part of the speaker or actor to cause such fear." Fighting words are limited to personal insults that are inherently likely to incite a violent reaction….
The plaintiff's affidavit described the following four alleged incidents of harassment.
First, in July 2024, while the plaintiff was working at the zoo, the defendant began "yelling and screaming" at the plaintiff that she "should lose [her] job and right to be a veterinarian[,] … that [she] was abusing [her] power[,] and that [she was] abusing and killing the animals."
Second, in September 2024, while the plaintiff was working at the zoo, the defendant began "telling other [zoo] visitors falsehoods about the elephants being beaten." The plaintiff told the visitors that the allegations were not true, but the defendant "immediately yelled at [her] over [her] explanation to the visitors and got within inches of [her] face to continue yelling" at her. About forty-five minutes later, the defendant reapproached the plaintiff and got "in [her] face yelling at [her] about how [she was] a bad veterinarian and [her] cruelty towards animals." The plaintiff alleged that she "felt like [the defendant] was trying to intimidate [her] to quit [her] job." The defendant was "in [her] face videotaping" the plaintiff, so the plaintiff called 911. While the plaintiff was on the phone, the defendant "chased after [the plaintiff]."
Third, also in September 2024, the defendant "formally fil[ed] a written complaint to the [veterinary licensing] Board" that "was all lies and falsehoods."
Fourth, in November 2024, a television news crew was at the zoo reporting on the elephants when the defendant disrupted an interview and began to "yell and scream at [the plaintiff] that [she was] not a licensed veterinarian and that she [did] not have a license to practice in [Massachusetts], and that [she was] abusing and murdering elephants." The defendant also "threaten[ed] [the plaintiff's] career."
Of the four incidents alleged, only the second arguably constituted harassing conduct—getting within inches of the plaintiff's face while yelling and chasing after the plaintiff. The remaining alleged conduct constituted protected speech, not rising to the level of fighting words or true threats…. [T]hreats containing ideas or advocacy causing fear of economic loss or unfavorable publicity are not "true threats" …. As a result, the judge erred in finding that the incidents described by the plaintiff amounted to three requisite acts of harassment pursuant to G. L. c. 258E….
The court also concluded the court violated plaintiff's due process rights:
[At the motion hearing, t]he plaintiff's attorney recited the procedural background and the judge began to review the plaintiff's affidavit. The plaintiff's lawyer then started to relate that the defendant had been charged with violating the ex parte order, when the defendant stated, "I object to that, Your Honor." The judge admonished the defendant, "No, no. First of all, … you're going to understand what the rules are; okay? … The rules are, you're not to interrupt at any time." The judge then explained, "You don't, in a civil case, have the opportunity to say you object…. It doesn't work that way…. That's in a criminal case."
The judge then turned to the plaintiff and asked her about the Federal trial in which the plaintiff had testified the previous year. [This appears to me to be Rowley v. City of New Bedford(D. Mass. 2024). -EV] The plaintiff explained that the defendant had filed a lawsuit against the city for violation of the Endangered Species Act and that the suit was resolved in favor of the city. The plaintiff's counsel offered to provide the judge with a copy of the decision.
When the judge asked whether the defendant had a copy, the defendant replied, "Yes, ma'am, I do. Yes, Your Honor," and added, "I object to it being relevant." The judge responded, "What did I say about objections?" and "I decide whether something is relevant[,] right?" The defendant then stated that she disagreed that the Federal court decision was relevant to the plaintiff's request for a 258E order. The judge replied, "You can disagree all you want, but—and you can voice that, I don't want you [to] think you can't voice it…. But you can't say you object."
The judge then said that she had reviewed the defendant's motion to vacate and asked why she should not extend the 258E order. Just as the defendant began to explain that the plaintiff's claims did not meet the legal standard, the judge cut off the defendant and asked a series of questions, pointedly asking why the plaintiff would accuse the defendant if the allegations were not true. When the defendant attempted to explain the context and her theory that it was in retaliation for the Federal lawsuit, the judge again cut off the defendant, telling her to "[s]top talking," and that she (the judge) did not need to know about the elephants at the zoo or the plaintiff's background as a veterinarian.
The judge then invited the plaintiff's counsel to cross-examine the defendant. The cross-examination centered around the Federal lawsuit (concerning the elephants) and the plaintiff's status and licensure as a veterinarian. The plaintiff's counsel then presented the testimony of the plaintiff, who affirmed the truth of her affidavit. The plaintiff expressed how the "entire situation [was] causing [her] immense stress."
At the conclusion of counsel's direct examination, the judge asked the plaintiff, "[Y]ou are concerned for your safety because of the actions of [the defendant] physically, verbally, and on social media; is that right? … And there have been several instances where she has intimidated you; is that right?" After the plaintiff answered in the affirmative, the judge stated, "I have no doubts that you're a competent veterinarian or [the zoo] wouldn't have hired you," and "don't you for one minute second guess your training. Nobody in this room is a veterinarian and knows anything about what you do, okay? … You got your degree. You worked hard for it. Move on with that." …
[T]he judge appeared to shift the burdens by accepting the plaintiff's affidavit and then challenging the defendant to disprove the allegations contained within it. The defendant had no burden to testify or present evidence. Furthermore, due process required that she be heard on her legal argument that the plaintiff's claims did not meet the elements for a 258E order.
Instead, the defendant was repeatedly shut down when attempting to make her valid legal points, incorrectly told that she had no right to make objections, and subjected to questioning pointedly challenging her veracity while assuming the veracity of the plaintiff. Then, the plaintiff's counsel was invited to cross-examine the defendant. The plaintiff, who had the burden, testified after the defendant and was not cross-examined at all. The record reflects that the defendant did not have a meaningful opportunity to be heard. Collectively, these irregularities raise troubling due process concerns….
For more on such unconstitutional speech-based injunctions in harassment cases, see this article.
The basketball star seems proud to leave the job to his partner. That’s so last century
Nobody can accuse the basketball star LaMelo Ball of being bad at his job. That said, the Minnesota Timberwolves point guard doesn’t seem to be a huge fan of dribbling.
Ball has a nine-month-old son, LaOne, with his partner Ana Montana (real name: Analicia Chaves) and is apparently uninterested in dealing with all the body fluids that come with a baby.
From Butler v. Lipscy, decided Monday by Minnesota Court of Appeals Judge Keala Ede, joined by Judges Diane Bratvold and Jon Schmidt:
Butler alleged that Lipscy engaged in acts of harassment targeting Butler and her children, including: following, monitoring, or pursuing Butler; making unwanted visits to Butler; frightening Butler with threatening behavior; taking pictures of Butler without permission; and using social media to harass Butler….
The facts, according to the appellate court's summary of the trial court findings, were this:
At the time the district court issued the HRO, Butler was a licensed marriage and family therapist who served "historically marginalized communities." This included members of "the Queer community," which Butler defined as "the Two Spirit (2S)/Gay/Lesbian/Bisexual/Transgender/Intersex/etc. community as a whole and individually." Butler was also "active in her local Itasca Pride board and community as a volunteer and current board member." She has three children, one of whom is "non-binary."
Lipscy held "Christian beliefs" that she posted about on the internet. And Lipscy administered a webpage called "Grand Rapids Rant."
Itasca Pride held a festival on June 23, 2024. Before that event, Lipscy posted on the internet about a public gathering called, "Protect the children from Pride/Drag show and Walk with Prayer," which Lipscy scheduled for the same date, time, and location as the Itasca Pride Festival. Before the events occurred, Lipscy wrote on the internet: "But if you cause one of these who trust in me to fall into sin, it would be better for you to have a large millstone tied around your neck and drowned in the depths of the sea. #BeTheirVoice Matthew 18:6." Lipscy also used the internet to encourage people to attend and to wear white shirts in opposition to Itasca Pride and in celebration of "traditional family values." At the June 23 Itasca Pride event, Lipscy took pictures of Butler's children, and Butler's husband told Lipscy to stop.
On September 28, Lipscy posted images from an Itasca Pride webpage on her Grand Rapids Rant internet site, with her own captions. These images included Butler's children with captions such as "Sickening," "Poor children," and "Those poor poor kids." Lipscy also identified Butler by name, listed Butler's title as "local therapist"—which "insinuate[ed] … [that] Butler was not a real therapist"—and referred to an event coordinated by the Minnesota Department of Natural Resources and Itasca Pride as having "influence over … children."
On October 20, Lipscy attended an event led by a school-board candidate who was advocating for a prohibition on transgender females in female sports. Lipscy broadcast the event on her Grand Rapids Rant webpage, identified Butler's husband, and described him as "pushing for boys to be in girls' bathrooms and supporting bringing kids to drag events." More specifically, Lipscy stated that Butler's husband "wasn't truly interested [on the day of the event] …, he just wanted to report back. Silly boy, [he] could've just watched live with [Butler]." In addition, "Butler's children attend the same school as … Lipscy's niece," and "Lipscy ha[d] been at the school since the above-described incidents … occurred."
Butler was "generally fearful for the safety of herself and children following the incidents involving … Lipscy." She "installed [four] cameras on her property and [two] cameras on her vehicle," "spent sessions with her clients discussing concerns the clients ha[d] about their safety given … Lipscy's social media posts referring to … Butler," "removed signage from her office, met with clients in a place other than her office, and met via tele-health to address concerns about client safety."
Her children became "afraid to go out in public without a parent and [had] an increased fear when out in the community." One of Butler's children "changed the way they dress[ed] because they [did] not want to get physically or emotionally hurt." Butler's children were "fearful that their photos [would] be put online to shame their family," "ask[ed] in public if they [were] safe," and "question[ed] whether people around them [were] 'people that hate Queer people.'"
The court issued a harassment restraining order that provided, in relevant part, that Lipscy
"shall not harass … [Butler] or her minor children included in the Petition";
"shall have no direct or indirect contact with … [Butler] or her minor children including any visits, phone calls, contact via electronic means such as email or social networking sites, threats or assaultive behavior to the protected persons, damaging or stealing property belonging to the protected persons, breaking into and entering the protected persons' residence, and/or taking pictures of the protected persons without permission from … [Butler]";
"is prohibited from being within 500 feet of … [Butler's] home" or "job site"; …
"is restrained from harassing, stalking, or threatening the protected persons, or engaging in other conduct that would place the protected persons in reasonable fear of bodily injury to that person"; and "is prohibited from the use, attempted use, or threatened use of physical force against the protected persons that would reasonably be expected to cause bodily injury."
Given that the court had found that Lipscy's social media posts referring to Butler were "harassment," and then restrained Lipscy from "harassing" Butler, the order thus forbade Lipscy from continuing to mention Butler. And indeed the appellate court acknowledged this, stating (emphases added) that the HRO
"allows Lipscy to express her religious views, provided that she does not mention Butler and her children and does not approach Butler, her home, and her workplace," and
"merely prohibits [Lipscy] from directing harassing conduct toward Butler and her children—such as photographing them, repeatedly naming them, and targeting them."
The appellate court upheld the order, reasoning that Lipscy's actions could indeed be found to be harassment, defined by the Minnesota HRO statute as "repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security, or privacy of another":
The district court determined that Lipscy "engaged in harassment," reasoning that Lipscy had: followed, monitored, or pursued Butler and her children; frightened Butler and her children; taken pictures of Butler's children without permission; and used social media to harass Butler on multiple occasions. In making this determination, the district court relied on evidence in the record that Lipscy had reposted pictures of Butler's children from the Itasca Pride webpage to the Grand Rapids Rant internet site with her own captions including: "Sickening," "Poor children," and "Those poor poor kids."
The district court also based its decision on evidence that Lipscy had reposted pictures from the Itasca Pride event while referring to Butler in a manner that questioned Butler's credentials as a therapist and had shared a video of Butler's husband while referring to Butler by name. And the district court made specific findings about how Butler was "generally fearful for the safety of herself and children following the incidents involving … Lipscy." …
And the court held that this doesn't violate Lipscy's free speech or religious freedom rights, because it is directed only at "speech or conduct that … is in violation of one's right to privacy," which Minnesota courts had held is constitutionally unprotected.
I think such an injunction is unconstitutional, at least as to the prohibition on repeatedly naming Butler in posts; for more on such orders, and the appellate decisions that mostly set them aside, see my Overbroad Injunctions Against Speech (Especially in Libel and Harassment and Cases) article. And while I'm sympathetic to the argument that adults should keep the children out of this, I'm not sure it's constitutional even as to that. But in any event, the Minnesota Court of Appeals thought the injunction was permissible, and I thought it worthwhile to note that.
Sara Jane Baldwin (Gender Justice) represents plaintiff.
From Judge Ted Stewart (D. Utah) in U.S. v. Wang, dated Sept. 9 but just docketed today:
Defendant objected to the condition that she notify any intimate partners "about the potential risk she poses" as vague. To avoid any vagueness, the Court imposed the following: "The court requires you to notify any intimate partners that you have been convicted of cyberstalking and pose a risk of stalking and harassment to intimate partners." The Court finds this condition is necessary to protect the public considering Defendant's history of cyberstalking and her relationships with her past victims.
I believe similar conditions are sometimes imposed as to sex offenders, but this is the first time I've seen something like this as to stalkers. (Note that, once a criminal defendant is convicted, the standard for evaluating probation conditions restricting or compelling speech becomes more much government-friendly than would be the case in the absence of such a conviction.) Here's the Justice Department's statement summarizing the case:
A Utah County woman was sentenced to 12 months' imprisonment [and thee years of probation] today for cyberstalking two male victims she met on online dating platforms and became obsessed with them….
According to court documents and statements made at Wang's change of plea and sentencing hearings, Wang connected with the victims separately on online dating sites in 2017 and 2018 and became obsessed with each victim. Using multiple accounts, fake names, social media accounts, and phone numbers, she harassed and disparaged them publicly and privately, tagging their friends, family, and employers.
On three separate occasions, Wang reported the victims to the federal Internet Crimes Complaint Center (IC3) claiming she was being harassed and impersonated online by them. Wang reported that they did these things together, even though there is no evidence that the victims had any relation to each other. Wang admitted that she filed the IC3 complaints to get law enforcement to investigate the victims in order to harass and intimidate them.
Wang's crimes against victim 1 and victim 2 are not isolated incidents. Wang engaged in a pattern of stalking behavior in 2013 and was convicted in the state of New York.
Another winner in the case, thanks to IOCB Prague's decision.
So reports the N.Y. Times (Mark Arsenault) yesterday, discussing former MIT cellular biology professor David Sabatini's victory on the defamation claim (and defendant's loss on her harassment and retaliation counterclaim). More details:
[Sabatini] was forced out of his lab in 2021 after an internal Whitehead [Institute] investigation concluded he had a past sexual relationship with a younger and less experienced colleague, Kristin Knouse, over whom he had a career-influencing role. The investigation also found that his lab had maintained a sexualized atmosphere. Dr. Knouse said that the relationship was coerced.
But Dr. Sabatini denied his lab had an improper atmosphere. He maintained that his relationship with Dr. Knouse had been consensual and that Dr. Knouse had schemed to get him fired and disgraced after he became interested in another woman….
After he was pushed out of M.I.T. and the Whitehead, he had talks with New York University about a job. But N.Y.U. staff members and students protested in the streets against his hiring in 2022, and the university did not hire him.
In 2023, he was hired by the Institute of Organic Chemistry and Biochemistry, in Prague, and later opened a Boston-area branch of that institute….
Here's an excerpt of what Sabatini alleged (quoting a Massachusetts appellate decision in the case, later reversed as to Knouse's counterclaim by the Massachusetts high court):
Sabatini and Knouse met in 2012. At the time, Sabatini was a tenured member of the department of biology at the Massachusetts Institute of Technology (MIT) and ran his own laboratory at Whitehead, a research institute affiliated with MIT that receives funding from private resources such as the Howard Hughes Medical Institute (HHMI) and public resources such as the National Institutes of Health (NIH). {As pertinent here, Whitehead and HHMI have a relationship whereby HHMI provides funding for, and in some instances employs, individuals working at Whitehead. At all relevant times, both Whitehead and HHMI employed Sabatini. In addition, NIH provided grants that funded Sabatini's research at Whitehead.}
Knouse was enrolled in an inter-institutional M.D./Ph.D. program at Harvard and MIT, where Sabatini was one of her instructors and served on her thesis committee. While Knouse was a doctoral student, she and Sabatini sometimes socialized.
Then, in 2018, Knouse started a fellowship at Whitehead, and she and Sabatini began a sexual relationship. While the relationship ended in 2019, Knouse sent text messages to Sabatini in January 2020 seeking to rekindle their relationship. Sabatini responded, asking Knouse to stop and stating that he wanted peace and needed space to figure things out.
In early 2020 through the fall of 2020, Knouse began telling colleagues, both at Whitehead and MIT, that Sabatini had sexually harassed her. In October 2020, Knouse reported the alleged sexual harassment to Lehmann. Around that time, Whitehead hired a consultant to conduct a diversity survey at Whitehead. During the survey, some Whitehead employees reported concerns about Sabatini. In response, Whitehead hired the law firm of Hinckley, Allen & Snyder LLP (HAS) to investigate the culture within Sabatini's laboratory. The HAS investigators spoke with Knouse and other members of the Whitehead community. In interviews with the HAS investigators, Knouse repeated her allegations that Sabatini had sexually harassed her.
On August 13, 2021, HAS sent a report to Whitehead finding that Sabatini had committed sexual harassment. Whitehead forwarded the report to MIT and HHMI. On August 19, Whitehead provided Sabatini with a copy of the report. On August 20, Sabatini resigned after learning that Whitehead was about to terminate his employment. {Before Sabatini resigned, his coemployer at Whitehead, HHMI, terminated his employment. MIT placed Sabatini on leave.}
And here's what Knouse alleged (quoting the Massachusetts high court decision); the jury verdict suggests that the jury largely believed Sabatini's story rather than Knouse's:
Sabatini was a laboratory director at the Whitehead Institute for Biomedical Research (Whitehead) and a tenured professor at the Massachusetts Institute of Technology (MIT) in 2012 when he met Knouse, then a graduate student at Harvard University and MIT. Sabatini was one of Knouse's instructors at MIT and served on her dissertation committee.
During a discussion in 2016 concerning whether Sabatini would endorse Knouse's application for an upcoming fellowship at Whitehead, Sabatini expressed concern that Knouse took herself too seriously and asked Knouse whether she ever had "fun," "fuck[ed] around," or had sex. Knouse responded that she did have fun and quickly left the conversation. Subsequently, Sabatini recommended Knouse for the fellowship and supported her grant application, both of which she secured.
Knouse joined Whitehead as a fellow in 2018. That year, Knouse and Sabatini began a sexual relationship that ended in 2019; thereafter, Sabatini continued to make sexualized comments to her. Knouse asserts that she struggled under this dynamic. Sabatini, whose laboratory was next to Knouse's, was the director of the Whitehead fellows program, and he served as a mentor and reviewer of her work. Knouse feared the potential consequences that losing an influential mentor would have on her career and believed she could not terminate the relationship without professional repercussions. She "began to withdraw from the scientific community" and "experience[d] debilitating feelings of entrapment and hopelessness."
Around this period, the results of a 2020 culture survey of Whitehead "suggested that Sabatini either personally engaged in sexually explicit and inappropriate discussions or fostered an environment that tolerated—or promoted—such inappropriate discussions and that he threatened those who might report his conduct." The survey results "amplified complaints" raised by two women, who had trained in Sabatini's laboratory, and by Knouse, who contemporaneously disclosed to the director that she had felt harassed during her fellowship but, fearing retaliation, did not provide any further details.
In response, Whitehead hired an independent legal team to investigate. The investigators determined, inter alia, that Sabatini had "engaged in and otherwise tolerated sexist and sexualized work discussions with his lab," and that engaging in such discussions "was an implicit part of succeeding in" Sabatini's laboratory. They also concluded that there was a "culture of fear and retaliation" within the laboratory. They reported that Sabatini had "engag[ed] in sexual relations with a Whitehead Fellow" and violated several Whitehead policies, including its sexual harassment policy.
Sabatini resigned from his Whitehead position. MIT announced that it was placing Sabatini on leave to perform its own investigation.
Sabatini's claims against Whitehead had earlier been dismissed (see, e.g., this decision).
Lisa Arrowood, Shayne Kinsella, and Sarah Sousa (Arrowood LLP) represent Sabatini.
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