MA SJC: A Single Abusive Song is Not Harassment

In a decision issued January 31, 2019, SJC-12452 F.K. vs. S.C., the Massachusetts Supreme Judicial Court addressed whether a rap song with abusive lyrics posted to Soundcloud and shared to Snapchat constitutes a violation of Mass. Gen. Laws Ch. 258E, the civil harassment prevention statute. The court held that it did not.

The plaintiffs and the defendant in the consolidated case were seniors at the same high school when the defendant created a rap song. In it, he improvised lyrics pertaining to the plaintiffs. They included lyrical references to violence that the defendant stated that he wanted to inflict on on plaintiff (M.D.), whose name appears in the song. Other lyrics described acts of sexual violence that the defendant indicated he wanted to inflict on F.K., another plaintiff. He then posted the song publicly to Soundcloud and linked to in on Snapchat.

The plaintiffs sought harassment prevention orders, pursuant to G. L. c. 258E, § 3 (a). § 1 of the same statute applies when a defendant has committed "[three] or more acts" of "[h]arassment." While the trial court judge found that in posting the song, the defendant had committed at least three individual acts of harassment against M.D. and F.K., the SJC disagreed and vacated the abuse prevention order. In doing so, however, the SJC made plain that “a single act of harassment may be sufficient for a civil injunctive order issued pursuant to a court's equity jurisdiction.” This is important. It’s the SJC suggesting an alternate method by which the plaintiffs here—and in other cases—could achieve a similar harassment prevention order with only a single act.

Among the problematic lyrics in the defendant's song, which was titled "Callin' Out Pussies in the School," were lyrics mentioning M.D. by name and other that appeared to contain direct threats. For example, the defendant sang, "I don't know what you are talkin' about, talking shit in . . . class"; "I'm gonna fuck you up soon"; "I'm gonna blow your fuckin' brains out soon"; and "I'm takin' your family down one by one, boom." The song also contained apparent references to M.D.'s girl friend, F.K. And the lyrics also contained profane and violent language that appeared to suggest rape or sexual assault. In particular, several stanzas included the following: "Makin' your bitch sittin' and stayin' on her knees, ya I like bitches on her knees"; "Then she gonna suck my D until she bleeds, ya"; and "Soon to be I'm gonna sit your bitch down in the fuckin' lobby."

The trial court judge concluded that "the individual statements within the song" constituted "separate acts" of harassment within the meaning of G. L. c. 258E, § 1, and that those lyrics were directed at M.D. and F.K. She also found that the defendant's posting of the song on two Internet websites and the fact that "at least six separate individuals" had heard the song each constituted separate acts of harassment. The judge also found that the defendant "engaged in a series of separate acts necessary to create," "post," and "distribute the song."

At the SJC, the defendant argued that performing the song and posting it on the Internet constituted "[o]ne continuous act," which "cannot be parsed into individual acts in order to satisfy" the requirements of G. L. c. 258E, §§ 1 and 3 (a). The SJC ultimately agreed that the defendant had not committed three or more separate acts of harassment. The SJC concluded that dividing the defendant's "one song" into many "individual lyrics" for the purpose of finding separate acts of harassment is impermissible under G. L. c. 258E, § 1. Further, because a song recorded in private, without more, that cannot "in fact cause" intimidation, abuse, damage to property, or fear of physical harm or damage to property, and so the defendant did not perform a separate act of harassment merely by singing or recording the song. “A recorded song,” the SJC noted, “may constitute an act of harassment, for the purposes of G. L. c. 258E, § 1, only when it is distributed to others.” Here, because the defendant posted the song on Soundcloud and shared it on Snapchat “in close succession, and removed the song from the Internet within two hours of initially posting it,” he effectively “engaged in one continuous act.” The SJC also held that the “fact that several people accessed the song on the Internet does not transform that single song into more than one act of harassment.”