Politician Uses Bad Cyberharassment Law To Shut Down Critic; Critic Hoping To Have Law Struck Down

from the thank-you-for-calling-our-attention-to-this-terrible-law dept

Lots of anti-harassment laws have been written over the years. The creation of these laws has sped up as legislators look to find some way of handling cyberbullying and online harassment. These laws have been uniformly bad. Those that make it to governors' desks are often struck down shortly thereafter by courts.

The problem is legislators try to target certain behavior with these laws, but seldom consider the amount of protected speech that will be caught in the laws' webbing. Or maybe these thoughts never enter the minds of legislators, who tend to write these bills badly and broadly.

We've seen multiple statutes come tumbling down after a Constitutional challenge. Eugene Volokh -- along with Venkat Balasubramani -- is challenging Washington state's harassment law over its stripping of free speech protections.

A Washington state statute criminalizes (among other things) “mak[ing] an electronic communication to … a third party” “with intent to harass, … torment, or embarrass any other person” if the communication is made “[a]nonymously or repeatedly.” This deliberately extends beyond unprotected speech (such as true threats or libel). It deliberately extends beyond unwanted speech said to a particular person and forbids embarrassing speech said about that person. Repeatedly criticizing a politician on your blog, for instance, could send you to jail if a prosecutor and judge or jury concludes that you were intending to “harass,” “torment” or “embarrass.”

There are several problems with the law, not the least of which is its addition of anonymity to the list of criminal stipulation. As Volokh notes, the law could be used to imprison bloggers who repeatedly criticize politicians -- an activity the term "blogging" is pretty much synonymous with.

Raising the challenge is Richard Rynearson, a retired Air Force major who has repeatedly criticized politicians for failing to condemn the 2012 National Defense Authorization Act, which authorizes the indefinite detention of US citizens thanks to our engagement in the Forever War on Terrorism.

And it's no longer a hypothetical question of whether Washington's anti-harassment law can be used to prosecute people for criticizing politicians. There are potential criminal charges awaiting Rynearson, thanks to a local politician's decision to leverage this law against a critic.

Rynearson, of Bainbridge Island, has repeatedly written posts that criticize — but don't threaten — Clarence Moriwaki, a key activist behind the formation of the Bainbridge Island Japanese American Exclusion Memorial, commemorating the World War II internment of Japanese Americans.

He insists that those who condemn the internment should also strongly speak out against the government's indefinite detention powers in the war on terror, but that Moriwaki hasn't.

After Moriwaki obtained a temporary restraining order and filed a police report last spring, saying he was being harassed by incessant text messages and Facebook posts, investigators recommended that Rynearson be charged with cyberstalking.

A deputy prosecutor in Kitsap County suggested in an email to Rynearson's lawyer in that matter the office might file charges if his behavior continued, but he has not been charged.

Volokh and Balasubramani have filed a motion [PDF] asking the court for an immediate injunction preventing the enforcement of the law while it's being challenged in court. Hopefully, this temporary injunction will be followed by a permanent ban on enforcement, because it's an unconstitutional law.

The breadth of the statute extends in several dimensions. First, the intent provision — sweeping in speech that a jury might find was intended to “harass, intimidate, torment, or embarrass any other person” — reaches broadly. The terms “harass, intimidate, torment, or embarrass” are not defined by the statute. The Washington Supreme Court, in a case examining the similarly-worded telephone-harassment statute, has defined “intimidate” to include “compel[ling] to action or inaction (as by threats),” Seattle v. Huff, 767 P.2d 572, 576 (Wash. 1989), but it did not provide a definition for the other proscribed purposes.

When statutory terms are undefined, however, Washington courts generally give them their ordinary meaning, including the dictionary definition. See id. (defining “intimidate” by reference to definition in Webster’s Third New International Dictionary). The dictionary definition of “harass” includes “to vex, trouble, or annoy continually or chronically,” Webster’s Third New International Dictionary, Unabridged (online ed. 2017), and the meaning of “torment” includes “to cause worry or vexation to,” id. Finally, “embarrass” means “to cause to experience a state of self-conscious distress.” Id. As a result, even public criticisms of public figures and public officials could be subject to criminal prosecution and punishment if they are seen as intended to persistently “vex” or “annoy” those public figures, or to embarrass or make them “self-conscious” about something.

The granting of a temporary injunction rests on the plaintiff's ability to prove he's being harmed. To date, Rynearson hasn't been arrested, but the local prosecutors have refused to say whether they're taking any action or are dropping the complaint against the blogger. So, it's not a case of hypotheticals. Others criticized by Rynearson could file similar complaints under the harassment law, hoping to nudge prosecutors towards bringing criminal charges.

The permaban, however, hinges on the First Amendment. Given the language used in the law, it certainly doesn't appear the statute can be read to steer clear of infringements on protected speech. This law was passed in 2004, but no one felt like abusing it to silence criticism until just recently. Now, the law will finally be examined by a federal court where it's unlikely to withstand Constitutional scrutiny.


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  • identicon
    Anonymous Coward, 21 Jul 2017 @ 12:17pm

    "A deputy prosecutor in Kitsap County suggested in an email to Rynearson's lawyer in that matter the office might file charges if his behavior continued, but he has not been charged."

    anyone else feel slightly chilled?

    reply to this | link to this | view in chronology ]

  • icon
    Stephen T. Stone (profile), 21 Jul 2017 @ 1:06pm

    “The mean blogger hurt my feelings by doing what op-ed writers do on far-less-regular basis” does not seem like the kind of justification for stripping someone of their right to express themselves.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Champion, 21 Jul 2017 @ 2:01pm

    suycky poo poo waaaaa

    thats about all i have to say about silencing anyone's right to free speech

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Jul 2017 @ 2:25pm

    Bounce it back.

    Surely good old Clarence has written something, somewhere re Rynearson and his position. If so, then tit for tat, Rynearson can invoke the *same bad law* to silence Clarence.

    File the complaint, watch Clarence dance.

    reply to this | link to this | view in chronology ]

  • icon
    orbitalinsertion (profile), 21 Jul 2017 @ 4:46pm

    Well, there goes every newspaper and talk radio show ever.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward,, 22 Jul 2017 @ 10:54am

    But technically

    "threatening" to vote him out of office could count as intimidation

    reply to this | link to this | view in chronology ]

  • icon
    Dan Audy (profile), 22 Jul 2017 @ 10:59am

    This doesn't necessarily seem unreasonable to me.

    Posting critical or embarrassing things online is completely legit but if the claims about the frequent harassing texts directly to him (particularly after being asked to stop) seem to meet a reasonable standard for what most people would consider harassment. Obviously, indirect posts should be legal since the 'victim' is opting in to seeing them if they choose to view them and legal remedies for false defamatory statements already exist.

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 22 Jul 2017 @ 12:06pm

      Re:

      If Moriwaki did not have a text alert system for new search results related to his name, any potential harassment charge would depend on who was sending texts to Moriwaki. The original article does not say if Moriwaki had directly accused Rynearson of sending any text messages. If Rynearson was not sending those messages, he should not be held legally liable for that. Even if he was doing that, he should only be charged with harassment for those specific actions, not for his continual criticism of Moriwaki and other politicians.

      reply to this | link to this | view in chronology ]

      • icon
        Dan Audy (profile), 22 Jul 2017 @ 12:35pm

        Re: Re:

        The kitapsun article DOES, in fact, say that Moriwaki claims Rynearson is sending him many harassing text message which is why I specified that those particular actions, and not any of his other postings, seemed to constitute harassment. Now I don't actually trust Moriwaki's claim without some further verification since he seems like the sort of idiot who would set up Twitter text alerts for his own name and then complain he was 'being harassed' by getting the notifications he asked for.

        reply to this | link to this | view in chronology ]

  • identicon
    Docrailgun, 22 Jul 2017 @ 3:56pm

    The main problem with the law is that not being to "harass, torment or embarass" people on rhe Intawrwebs destroys the whole purpose of the 'net. It epuld be like removing all rhe porn online.

    reply to this | link to this | view in chronology ]

  • identicon
    BiffNotZeem, 14 Nov 2017 @ 6:07pm

    This piece inaccurately described the situation. Is this sloppy writing or an intent to serve an agenda?

    Moriwaki is neither a politician nor elected official. He is the chair of the committee that worked towards establishing a local memorial to the Japanese residents of Bainbridge Island that were forced to leave their home for internment camps at the start of World War II.

    As has been reported, Rynearson was not happy that Moriwaki was not publicly critical of US policies that allow for indefinite detention of US citizens and criticized him at every opportunity to the point that Moriwaki felt that it was harassment.

    I don't know enough of the facts in this case to know what actually happened. That is for the courts to decide. I do know Moriwaki and, given the response that I have received on other issues from Rynearson's local supporters, I would not be surprised if Moriwaki was being harassed. My response has been to contact Twitter and Facebook and point out that their Terms of Service are being violated. Given how well that worked, I am not surprised to see Moriwaki using cyberbullying laws.

    reply to this | link to this | view in chronology ]


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