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SJC-11905

ROLAND VAN LIEW vs. COLLEEN STANSFIELD.

Middlesex. January 8, 2016. - March 30, 2016.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & 

Hines, JJ.

"Anti-SLAPP" Statute. Practice, Civil, Motion to dismiss, 

Appeal, Review of interlocutory action. District Court, 

Appellate Division. Civil Harassment.

Civil action commenced in the Lowell Division of the 

District Court Department on February 22, 2012.

A special motion to dismiss was heard by Laurence D. 

Pierce, J.

The Supreme Judicial Court on its own initiative 

transferred the case from the Appeals Court.

Michael J. Fencer for the defendant.

Karen A. Pickett for the plaintiff.

BOTSFORD, J. In this case we first consider a procedural 

issue concerning the appropriate forum to hear appeals from the 

allowance of a special motion to dismiss under G. L. c. 231, 
2

§ 59H (§ 59H), the so-called "anti-SLAPP"

1 statute, by a judge in 

the District Court. This case also requires us to evaluate the 

relationship between G. L. c. 258E, the statute governing civil 

harassment prevention orders, and allegedly political speech. 

On the procedural issue, we conclude that a party seeking to 

appeal from a District Court order allowing or denying a special 

motion to dismiss may file the appeal directly in the Appeals 

Court, rather than in the Appellate Division of the District 

Court Department (Appellate Division). We further conclude that 

with one possible exception, the speech at issue here --

primarily concerning a local municipal election and more 

generally issues of local public concern -- did not qualify as 

either "fighting words" or "true threats," see O'Brien v. 

Borowski, 461 Mass. 415, 425 (2012), and therefore, no civil 

harassment prevention order should have issued in this case. In 

the circumstances presented, Roland Van Liew established that 

Colleen Stansfield's petition for a civil harassment prevention 

order was devoid of factual support, that he had sustained 

injury, and that Stansfield's special motion to dismiss Van 

Liew's complaint for abuse of process and malicious prosecution

should have been denied.

 

1 "Anti-SLAPP" stands for anti-strategic lawsuit against

public participation. See Duracraft Corp. v. Holmes Prods. 

Corp., 427 Mass. 156, 160 n.7 (1998).
3

Background.

2 Van Liew and Stansfield are both residents of 

Chelmsford (town). Stansfield has been an elected member of the 

local planning board since April, 2009. At the time of the 

events at issue here, in 2012, Van Liew did not hold public 

office but was an active participant in local civic and 

political affairs. Over the years, Van Liew has disagreed 

publicly with many positions taken by Stansfield on the planning 

board and in her role supporting local political campaigns.

In 2012, Van Liew was a candidate for selectman in the 

town, and on February 1, 2012, he held a public "meet and greet"

event at the town library in connection with his candidacy. 

Stansfield attended the event and challenged various positions 

taken by Van Liew during the discussion. At the close of the 

event, Stansfield approached Van Liew and asked whether he was 

going to take part in upcoming debates. According to 

Stansfield, Van Liew responded loudly, "[O]f course . . . and I 

know what you do. . . . [Y]ou sent an anonymous letter to my 

wife and I'm coming after you," to which Stansfield responded,

"[Y]ou are looking at a restraining order," and left.3

 

2 The following background facts are taken from the

pleadings of this case and the affidavits filed in support of 

and in opposition to the special motion to dismiss filed by 

Colleen Stansfield pursuant to G. L. c. 231, § 59H (§ 59H).

Where facts are in dispute, it is noted in a footnote.

3 As set out in his affidavit, Roland Van Liew contends he 

answered Stansfield's question without threatening her and told 
4

Later that day, after speaking with local police, 

Stansfield sought in the District Court a harassment prevention 

order against Van Liew pursuant to G. L. c. 258E, § 3. She 

alleged four incidents of harassment in her complaint: (1) Van 

Liew threatened Stansfield at the meet and greet event, where he 

was "in [her] face" and told her he was "coming after" her and 

she left shaking in fear; (2) Van Liew sent several mailings in 

the past year calling Stansfield corrupt and a liar; (3) during 

a recall election in July, 2011, Van Liew again called her a 

liar and corrupt; and (4) during their first interaction in a 

two-hour telephone call initiated by Stansfield (that took place 

at some point prior to 2009) Van Liew screamed at her and called 

her "terrible names." A District Court judge held an initial,

ex parte hearing at which Stansfield testified; the judge issued 

a temporary harassment prevention order against Van Liew.

4 The 

judge scheduled a full hearing on Stansfield's request for a

permanent order to take place two weeks later, on February 15, 

2012. Five days after the temporary order issued, it was 

modified at Stansfield's request to prevent Van Liew from 

mentioning Stansfield's name in any "email, blog, [T]witter or 

 

her, "I don't want any more anonymous letters sent to my wife,"

to which Stansfield responded, "You need a restraining order."

4 The February 1, 2012, temporary order required Van Liew 

not to abuse, harass, or contact Stansfield and to stay away 

from Stansfield's residence.
5

any document through [I]nternet, television show, ad or 

otherwise." On February 15, 2012, the scheduled hearing on 

Stansfield's request for an order took place before a different 

District Court judge. It was attended by Stansfield, who 

represented herself, and Van Liew, represented by counsel. 

Stansfield testified about the verbal exchange at Van Liew's 

meet and greet event, and further testified that, in the past, 

Van Liew had called Stansfield "corrupt and a liar" with regard

to her work on the planning board, specifically pointing to two 

electronic mail (e-mail) messages written by Van Liew, one of 

which Stansfield read to the judge. The e-mail message appears 

to mention Stansfield twice by name but goes on at great length 

to provide highly critical commentary about certain development 

projects that were being proposed for the town pursuant to G. L. 

c. 40B and other programs.5 The judge concluded that she could 

not find the requisite three acts of harassment for a harassment 

prevention order under G. L. c. 258E and that some of the acts 

alleged by Stansfield were political speech, not threatening in 

 

5 Stansfield told the judge that in the second electronic 

mail (e-mail) message, which was sent after the temporary 

harassment prevention order had issued and had been modified to 

prohibit Van Liew from using Stansfield's name in any e-mail

message, Van Liew did in fact mention her by name and called her 

a liar. However, Stansfield did not read into the hearing 

record the text of the e-mail message in question and it is not 

included in the record before us.
6

any way; the judge vacated the temporary harassment prevention 

order.

Van Liew then filed the present action against Stansfield 

in the District Court, asserting claims for abuse of process and 

malicious prosecution. The complaint alleges that Stansfield 

sought the harassment prevention order against him "for the 

purpose of disrupting [Van Liew's] campaign" and that she sought 

the order even though she knew she lacked probable cause for its 

issuance. Stansfield answered and also filed a special motion 

to dismiss the complaint pursuant to § 59H along with a 

supporting affidavit. Van Liew filed an opposition to 

Stansfield's special motion to dismiss and a supporting 

affidavit. A third District Court judge allowed the special 

motion after a hearing, and ruled that Van Liew "failed to show 

that the application for a harassment prevention order 'was 

devoid of any reasonable factual support,'" quoting G. L. 

c. 231, § 59H. Van Liew then appealed the ruling to the 

Appellate Division, which concluded after a hearing that Van 

Liew had presented sufficient evidence to show that Stansfield 

lacked any reasonable factual support for her petitioning 

activity; the Appellate Division vacated the order of dismissal 

and remanded the case to the District Court for trial. 

Stansfield filed an appeal in the Appeals Court from the 
7

decision and order of the Appellate Division; we transferred her 

appeal to this court on our own motion.

Discussion. 1. Stansfield's right to appeal. We first 

consider whether Stansfield may proceed with her appeal, given 

that the Appellate Division's order vacating the allowance of

the special motion to dismiss and remanding the case for trial

is interlocutory, and generally may not be the subject of an 

appeal. Van Liew argues that this court lacks jurisdiction 

because by statute, G. L. c. 231, § 109, only final decisions of 

the Appellate Division are appealable to the Appeals Court. We 

disagree.

This court previously has held that regardless of where --

i.e., in which department of the trial court -- a suit may be 

commenced, a trial judge's denial of a special motion to dismiss 

brought pursuant to the anti-SLAPP statute, § 59H,

6 may be 

 

6 Section § 59H provides in relevant part:

"In any case in which a party asserts that the civil 

claims, counterclaims, or cross claims against said party 

are based on said party's exercise of its right of petition 

under the constitution of the United States or of the 

[C]ommonwealth, said party may bring a special motion to 

dismiss. The court shall advance any such special motion 

so that it may be heard and determined as expeditiously as 

possible. The court shall grant such special motion, 

unless the party against whom such special motion is made 

shows that: (1) the moving party's exercise of its right 

to petition was devoid of any reasonable factual support or 

any arguable basis in law and (2) the moving party's acts 

caused actual injury to the responding party. In making 

its determination, the court shall consider the pleadings 
8

appealed directly to the Appeals Court. See Fabre v. Walton, 

436 Mass. 517, 521-522 (2002), S.C., 441 Mass. 9 (2004). The 

reasons for our holding, set out in Fabre,

7 apply with equal 

force to an Appellate Division decision denying a special motion 

to dismiss, and therefore to Stansfield's appeal. But more 

generally, and based on the same concerns that we expressed in 

Fabre about certainty, uniform treatment of similarly situated 

litigants, and consistent development of the law relating to the 

anti-SLAPP statute, see id. at 522, we conclude that any party 

in a case pending in the District Court who seeks to appeal from

the denial or the allowance of a § 59H special motion to dismiss 

 

and supporting and opposing affidavits stating the facts 

upon which the liability or defense is based.

7 Section 59H protects "individuals who exercise their right 

to petition from harassing litigation and the costs and burdens 

of defending against retaliatory lawsuits." Fabre v. Walton, 

436 Mass. 517, 520 (2002), S.C., 441 Mass. 9 (2004), citing 

Duracraft Corp., 427 Mass. at 161-162. As part of these 

protections, the defendant in a SLAPP suit may file a "special 

motion to dismiss" early in the litigation. G. L. c. 231,

§ 59H. In Fabre, supra at 521, we specifically recognized that 

"the denial of a special motion to dismiss interferes with 

[anti-SLAPP statute] rights in a way that cannot be remedied on 

appeal from the final judgment," and notwithstanding the general 

rules of appellate review, immediate appeal of an interlocutory 

order denying a special motion to dismiss is necessary to 

preserve the protected rights; to force a defendant to endure 

litigation before allowing the appeal undermines the purpose of 

the special motion to dismiss. We further stated that "for 

purposes of certainty, uniformity of treatment of litigants, and 

the development of a consistent body of law, an interlocutory 

appeal from the denial of a special motion to dismiss should 

proceed to the Appeals Court, regardless of the court in which 

the SLAPP suit was brought." Id. at 522. See Benoit v. 

Frederickson, 454 Mass. 148, 151-152 (2009).
9

should file the appeal directly in the Appeals Court rather than 

in the Appellate Division of the District Court or the Appellate 

Division of the Boston Municipal Court. See Zullo v. Goguen, 

423 Mass. 679, 681 (1996) ("This court has wide discretion in 

devising various procedures for the course of appeals in 

different classes of cases" [citation omitted]). In sum, 

Stansfield's appeal was filed properly in the Appeals Court, and 

like the Appeals Court, this court has jurisdiction to decide 

it.

2. Stansfield's special motion to dismiss. We turn to the 

merits. Stansfield, as the party filing a special motion to 

dismiss under § 59H, bore the initial burden to demonstrate 

through her pleadings and affidavits that Van Liew's claims she 

sought to dismiss were based on her "petitioning activities 

alone and ha[d] no substantial basis other than or in addition 

to the petitioning activities." Duracraft Corp. v. Holmes 

Prods. Corp., 427 Mass. 156, 167-168 (1998). See G. L. c. 231, 

§ 59H. There is no dispute that Stansfield met that burden; Van 

Liew's complaint focused solely on Stansfield's application for 

a harassment prevention order, which originally was granted ex

parte as a temporary order. Van Liew makes no claim here, nor 

could he, that Stansfield's application for this order did not 

qualify as petitioning activity under the anti-SLAPP statute. 

Cf. McLarnon v. Jokisch, 431 Mass. 343, 347 (2000) (anti-SLAPP 
10

statute covers filings for abuse protection orders, pursuant to 

G. L. c. 209A, and supporting affidavits). As a consequence, 

Van Liew was required by the statute to show by a preponderance 

of the evidence –- again based on pleadings and affidavits --

that Stansfield's petitioning activities were "devoid of any 

reasonable factual support or any arguable basis in law" and 

that such petitioning activities "caused actual injury" to him. 

G. L. c. 231, § 59H. See Benoit v. Frederickson, 454 Mass. 148, 

152-153 (2009). See also Baker v. Parsons, 434 Mass. 543, 553-

554 (2001) (nonmoving party's obligation to show moving party's 

petitioning activities were devoid of either reasonable factual 

support or arguable legal basis is not "an insurmountable 

barrier to relief"). Stansfield argues that Van Liew failed to 

meet either prong of his burden. We agree with the Appellate 

Division, however, that Van Liew met both prongs, and the 

special motion to dismiss should have been denied.

A party seeking a harassment prevention order under G. L. 

c. 258E, § 3,

8 must demonstrate "harassment," which the statute 

 

8 General Laws c. 258E, § 3, provides in relevant part:

"(a) A person suffering from harassment may file a 

complaint in the appropriate court requesting protection 

from such harassment. A person may petition the court 

under this chapter for an order that the defendant:

"(i) refrain from abusing or harassing the plaintiff, 

whether the defendant is an adult or minor;
11

defines in relevant part to mean "[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." G. L. c. 258E, § 1.9 The 

definition of "harassment" in c. 258E was crafted by the 

Legislature to "exclude constitutionally protected speech," 

O'Brien, 461 Mass. at 425, and to limit the categories of 

constitutionally unprotected speech that may qualify as 

"harassment" to two: "fighting words" and "true threats." Id. 

See Seney v. Morhy, 467 Mass. 58, 63 (2014). To qualify as 

"fighting words" the words "must be a direct personal insult 

addressed to a person, and they must be inherently likely to 

provoke violence." O'Brien, supra at 423. As for "true 

threats," these include "direct threats of imminent physical 

harm," as well as "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." Id. at 425. 

 

"(ii) refrain from contacting the plaintiff, unless 

authorized by the court, whether the defendant is an adult 

or minor; [and]

"(iii) remain away from the plaintiff’s household or 

workplace, whether the defendant is an adult or minor

. . . ."

9 The word "malicious" is also defined in G. L. c. 258E, 

§ 1, and means "characterized by cruelty, hostility or revenge."
12

Moreover, to constitute "harassment" within the definition of 

the term in c. 258E, the fighting words or true threats must 

have been made with an intention to cause, and must actually 

cause, abuse, fear, intimidation, or damage to property.

10 G. L. 

c. 258E, § 1. And fear is narrowly defined as fear of physical 

harm or fear of physical damage to property; it must be more 

than "a fear of economic loss, of unfavorable publicity, or of 

defeat at the ballot box." O'Brien, supra at 427.

In her request for the harassment prevention order,

Stansfield pointed to the following conduct on Van Liew's part 

that, she claims in this appeal, compelled her to seek the 

harassment prevention order against him: during a telephone 

call, Van Liew called her uneducated and stupid; in public 

mailings, Van Liew stated that Stansfield was corrupt and a 

liar, and further referred to her as corrupt and a liar during a 

local recall election; and Van Liew threatened her at the meet 

 

10 To obtain a harassment prevention order, a plaintiff must 

show that the defendant intended to cause "fear, intimidation, 

abuse, or damage to property" with respect to each of the three 

claimed acts of harassment. O'Brien v. Borowski, 461 Mass. 415, 

426 n.8 (2012). In determining whether the acts did in fact 

cause "fear, intimidation, abuse, or damage to property,"

however, the fact finder "must look to the cumulative pattern of 

harassment, and need not find that each act in fact caused fear, 

intimidation, abuse, or damage to property." Id.
13

and greet event held in support of his candidacy for the office 

of selectman.

11

We will assume that the most recent incident alleged by 

Stansfield, occurring at the meet and greet event, qualified as

an act of harassment under G. L. c. 285E, § 1; that is, we will 

assume that Van Liew's declaration to Stansfield, "I'm coming 

after you," was an "act[] of willful and malicious conduct," and 

further that it was aimed at Stansfield, was committed with the 

requisite intent, and caused Stansfield fear. However, the 

other three instances complained of by Stansfield -- accusations

made in public mailings, accusations made during the 2011 recall 

election, and insults made during a telephone call that took 

place before 2009 -- did not qualify as harassing acts within 

the scope of G. L. c. 258E.

The public accusations by Van Liew that Stansfield was 

"corrupt and a liar" -- the subject of two of the four incidents 

of harassment -- plainly were remarks about Stansfield's 

performance as an elected planning board member, i.e., as a 

public official. See Arlington v. Board of Conciliation & 

Arbitration, 370 Mass. 769, 777 (1976). These remarks about a 

local public official constituted political speech and were at 

 

11 According to the police report regarding the meet and 

greet encounter -- submitted to the District Court by Van Liew 

in support of his opposition to the special motion to dismiss --

Stansfield stated that she attended the political event to 

"rattle Van Liew's cage."
14

the core of the speech that the First Amendment to the United 

States Constitution protects. See McIntyre v. Ohio Elections 

Comm'n, 514 U.S. 334, 346 (1995) ("Discussion of public issues 

and debate on the qualifications of candidates are integral to 

the operation of the system of government established by our 

Constitution. The First Amendment affords the broadest 

protection to such political expression in order 'to assure 

[the] unfettered interchange of ideas for the bringing about of 

political and social changes desired by the people'" [citation 

omitted]). Although these types of public accusations may be 

"vehement, caustic, and sometimes unpleasantly sharp," New York 

Times Co. v. Sullivan, 376 U.S. 254, 270 (1964), this form of 

political speech must remain "uninhibited, robust, and wideopen," id. Van Liew's challenged accusations were neither 

fighting words nor true threats, but at most qualify as 

political hyperbole. See Commonwealth v. Chou, 433 Mass. 229, 

236 (2001) ("The term 'true threat' has been adopted to help 

distinguish between words that literally threaten but have an 

expressive purpose such as political hyperbole, and words that 

are intended to place the target of the threat in fear").

The remaining act of which Stansfield complained occurred 

when she telephoned Van Liew to become acquainted with him and 

his views about issues of concern in the town, and Van Liew 

spoke "very loudly . . . telling [her she] was wrong, uneducated 
15

or stupid." The record indicates that at the time of this

telephone call, Stansfield was not yet a planning board member 

and therefore not a public official, but the discussion involved

matters of public interest. Regardless of whether the discourse 

was political in nature, however, Van Liew's insults certainly 

failed to qualify as fighting words or true threats. The 

insults were not "so personally abusive that they [were] plainly 

likely to provoke a violent reaction and cause a breach of the 

peace," O'Brien, 461 Mass. at 423, nor did such insults, even if 

delivered in a loud voice, rise to the level of a "true threat"

of "imminent physical harm" or words that would cause someone to 

fear such harm. Id. at 425. As such, these telephone 

conversation insults do not qualify as harassing conduct within 

the scope of G. L. c. 258E. Accordingly, because Stansfield 

failed to present three or more acts of harassment, she was not 

entitled to a harassment prevention order. See Seney, 467 Mass. 

at 63-64 (evidence was insufficient to establish three acts of 

harassment under c. 258E where plaintiff failed to show 

defendant intended to cause fear or intimidation; e-mail message

addressed to third party using unflattering terms to describe 

plaintiff was not directed at plaintiff and was not motivated by 

cruelty, hostility, or revenge). As a result, and as Van Liew 

showed below in accordance with his burden to do so, 

Stansfield's petitioning activity -– seeking a harassment 
16

prevention order -- was "devoid of any reasonable factual 

support or any arguable basis in law." G. L. c. 231, § 59H. 

See Benoit, 454 Mass. at 154 n.7.

Stansfield contends that the original issuance of a

temporary harassment prevention order and its subsequent 

modification is proof that a reasonable person may conclude 

there was sufficient factual support for the petitioning 

activity. The argument fails. Although a judge granted the 

request for a harassment prevention order after a brief ex parte

hearing and the order was modified thereafter to increase its 

restrictions on Van Liew,

12 that order was only temporary. Two 

weeks later, after a full hearing that presented Van Liew with 

his first opportunity to be heard, the temporary order was 

vacated. Contrast Fabre, 436 Mass. at 524 (where judge extended 

restraining order for six months after evidentiary hearing and 

final judgment entered, "the judgment is conclusive evidence 

that the petitioning activity was not devoid of any reasonable 

factual support or arguable basis in law"). It was clear from 

the text of Stansfield's complaint for a harassment prevention 

order that no valid basis for such an order was presented; the 

insufficiency of facts pleaded could not be cured by a temporary 

order that was entered erroneously.

 

12 The record does not indicate whether the modification of 

the temporary order involved any type of hearing before a judge.
17

Finally, Van Liew adequately demonstrated that Stansfield's 

petitioning activity caused him "actual injury," the second 

prong of the showing he was required to make to defeat 

Stansfield's special motion to dismiss. To defend against the 

harassment protection order sought by Stansfield, Van Liew 

retained an attorney to represent him at the full hearing before 

the District Court judge and submitted supporting evidence of 

the attorney's fees and costs he was responsible for paying as a 

result.13,14 The costs of defending against improper petitioning 

activity, once affirmatively proved, are evidence of reasonable 

damages. Cf. Millennium Equity Holdings, LLC v. Mahlowitz, 456 

Mass. 627, 645-647 (2010). We accordingly conclude that Van 

Liew met his burden as the nonmoving party and the Appellate 

 

13 Stansfield argues that the attorney's bill for his 

services was sent to a corporate nonparty, Hands on Technology 

Transfer, Inc., and not to Van Liew, and therefore does not 

evidence damages suffered by Van Liew himself. The attorney's 

bill, however, was addressed to "Mr. Roland Van Liew" at the 

corporate address, and based on this record, we decline to infer 

that Van Liew did not bear responsibility to pay for his

attorney's services.

14 Van Liew further alleged reputational harm caused by 

Stansfield's petitioning activity. Because we conclude that Van 

Liew's evidence of legal expenses was sufficient to meet his 

burden under § 59H to show damages, we do not consider his 

allegations of reputational harm.
18

Division correctly denied Stansfield's special motion to 

dismiss.15

Conclusion. We vacate the order of the District Court and

remand the case to that court for further proceedings consistent 

with this opinion.

So ordered.

 

15 Stansfield argues also that the allegations made by Van 

Liew in his complaint -- that Stansfield sought the harassment 

prevention order out of malice and with intent to disrupt his 

campaign -- are unfounded accusations. The argument is not 

relevant to our analysis of the issues before us, and we do not 

reach it.