Federal Court Blocks Washington State's Unconstitutional Cyberstalking Law

from the fixing-stupid dept

When legislators craft unconstitutional laws, it's a safe bet the first people to abuse them will be members of the government. We've seen this happen with outdated criminal defamation laws and the new wave of "Blue Lives Matter" legislation. Attempts to curb online evils like cyberbullying and revenge porn tend to disregard the First Amendment. If they're not challenged, they go on to be tools deployed by government officials to silence critics.

That's what happened in the state of Washington. A vociferous government critic found himself targeted by a displeased politician who used the state's cyberstalking law to obtain a very restrictive protective order to silence his online nemesis. As the federal court notes in its decision [PDF], the speech the critic engaged in is the very reason for the First Amendment's existence. (via Courthouse News)

Rynearson is an online author and activist who regularly writes online posts and comments to the public related to civil liberties, including about police abuse and the expansion of executive power in the wake of September 11. Rynearson’s writings are often critical—and sometimes harshly so—of local public figures and government officials. These writings are well within the traditions of independent American political discourse, and are intended both to raise the awareness of other citizens regarding the civil-liberties issues that Rynearson writes about, and to hold civic and political leaders accountable to the community through pointed criticism. This sort of expression is at the very heart of political speech which the First Amendment most strongly protects.

Rynearson's online posts were highly critical of politicians he felt didn't condemn the indefinite imprisonment of foreigners, something authorized by the NDAA (National Defense Authorization Act). One politician he felt was too enthralled with indefinite detention was Clarence Moriwaki.

[I]n February 2017, Rynearson wrote a series of public posts on Facebook criticizing Clarence Moriwaki, the founder of the Bainbridge Island Japanese-American Exclusion Memorial (“Memorial”), for failing to criticize Governor Inslee and President Obama for voting for/signing the NDAA. The thrust of Rynearson’s posts was that Moriwaki should be removed from his role as board member and de facto spokesperson for the Memorial because Moriwaki used the lessons of the internment, and his role with the Memorial, to criticize Republican politicians (chiefly, President Trump) in many media articles or appearances related to the Memorial, but failed to criticize Democratic politicians.

As the court notes, Rynearson used "invective" and "ridicule" to make his points. Moriwaki reported this ridicule (which, as the court points out, did not contain obscenity or threats) to local law enforcement. This did not result in an arrest, but Rynearson received a letter from the prosecutor notifying him she would "revisit" the possibility of prosecuting him if he didn't shut the hell up.

This also resulted in Moriwaki obtaining a protective order against Rynearson -- one that decided the First Amendment simply didn't exist.

For a period of time, from March 2017 to January 2018, Rynearson was also subject to a civil protection order imposed by the Bainbridge Island Municipal Court based on posts critical of Moriwaki. Moriwaki v. Rynearson, No. 17-2-01463-1, 2018 WL 733811, at *12 (Wash. Sup. Ct. Jan. 10, 2018). The cyberstalking statute was one of the statutes invoked by the Municipal Court in imposing the protection order. Moriwaki, 2018 WL 733811, at *5. The order imposed sharp limits on Rynearson’s speech, such as barring the use of Moriwaki’s name in the titles or domain names of webpages.

This order was vacated by the same court after Rynearson's Constitutional challenge. Now, Rynearson is challenging the law itself, pointing out (very reasonably) that the law's unconstitutional restrictions could see him on the receiving end of future protective orders or criminal charges.

The federal court says Washington's law is unconstitutionally overbroad, threatening a whole lot of protected speech.

Section 9.61.260(1)(b)’s breadth—by the plain meaning of its words—includes protected speech that is not exempted from protection by any of the recognized areas just described. Section 9.61.260(1)(b) criminalizes a large range of non-obscene, non-threatening speech, based only on (1) purportedly bad intent and (2) repetition or anonymity.

The state couldn't come up with much to defend its bad law -- just a couple of unpublished opinions that don't say quite what the state imagines they say. The federal court offers its rebuttal, which only cites the highest court in the land.

[T]he Supreme Court has consistently classified emotionally distressing or outrageous speech as protected, especially where that speech touches on matters of political, religious or public concern. This is because “in public debate our own citizens must tolerate insulting, and even outrageous, speech in order to provide ‘adequate breathing space’ to the freedoms protected by the First Amendment.”

With that, the federal court declares the law unconstitutional, handing Rynearson an injunction preventing the state of Washington from using the law against him.

Based on the record before the Court it is highly likely that in the final analysis the Court will declare the provision is unconstitutional and therefore unenforceable. Anonymous speech uttered or typed with the intent to embarrass a person as here, is protected speech. The plain meaning of the italicized words render 9.61.260(1)(b) unconstitutional.

For the reasons given here, this Court concludes that RCW 9.61.260(1)(b) is facially unconstitutional.

The law is effectively dead. The only thing surprising about this is that the law has survived so long without being struck down. For 15 years, it's been illegal to "embarrass" people online. It took a politician abusing the law to silence a critic to finally get it struck down.

Filed Under: 1st amendment, cyberstalking, free speech, washington


Reader Comments

Subscribe: RSS

View by: Time | Thread


  • icon
    Toom1275 (profile), 18 Mar 2019 @ 4:08pm

    Perhaps Moriwaki should move to Russia so he can be protected by like-minded politicians.

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 18 Mar 2019 @ 5:11pm

    47 USC 223(h)(1) was revised in 2006:

    "The section as amended reads like this: "Whoever...utilizes any device or software that can be used to originate telecommunications or other types of communications that are transmitted, in whole or in part, by the Internet... without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person...who receives the communications...shall be fined under title 18 or imprisoned not more than two years, or both."

    The idea was to prevent anonymous cowards on the internet from stalking people, like the hacker half of that lawyer-hacker mafia, as well as one particular lawyer who likes to cloak when harassing his targets (and who can be found commenting on this site as well, usually anonymously). It would also protect against certain websites that like to defame people, anonymous defamatory reviews, and so forth, including the threats to kill me and those perceived as sympathetic to me. The idea was to elevate those who signed their name above those who did not.

    What a good anti-stalking law would do is criminalize the IIED tort (intentional infliction of emotional distress), for which truth is not a defense as it would be for defamation. Truth is also not a defense for things like fair-housing or Title VII retaliation, and many who are told they aren't defaming someone think they have a green light to violate those laws. Throw in a remark imputing mental illness on someone and it already rises to the level of a hate crime (harassment based on perception of disability). One particular stalker already got a visit from police over this thanks to me but probably didn't inform the group. When I say there is police involvement I mean there is police involvement, even moreso now thanks to the veiled death threats against EU officials.

    Given Masnick's ties to people who engage in rather severe cyberstalking as part of their "business model" (Including someone who brags simultaneously about cloaking their identity and likes to claim to live in a state about 1,200 miles from where it actually lives), it's not surprising that he would come out against this law.

    Masnick thinks he's a lot smarter than he is, but he's not. Matter of time before he finds that out. This fucker lets his comments section do what he's too much of a coward not to. He'll see the error of his ways soon enough.

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

    • identicon
      Anonymous Coward, 18 Mar 2019 @ 5:27pm

      Re:

      Be careful you don't hoist yourself on your petard there, BillyJohn.

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

    • icon
      Gary (profile), 18 Mar 2019 @ 6:11pm

      Re:

      Wait - someone has impugned your mental health more than me? I'm hurt.

      If someone actually threatened you, you'd be linking it left and right - but you haven't so, that makes you a fool or a liar.

      But no one here can defame your good reputation, because you don't have one. You could be some minor in Australia for all we know. It's impossible to make a credible threat when you don't know who you are threatening.

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

    • identicon
      Anonymous Coward, 18 Mar 2019 @ 6:39pm

      Re: Impotent threats are sexy 😘

      “including the threats to kill me and those perceived as sympathetic to me.”

      This is paranoid schizophrenia. No wonder you got a bug up your ass about being called mentally ill.

      Are we back to the the police fantasy or the cyber-ninja-barrister fantasy?

      Sorry can’t do the cowboy fantasy as my assless chaps are at the cleaners.

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

    • identicon
      Anonymous Coward, 18 Mar 2019 @ 7:06pm

      Re:

      Just...wow.

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

    • identicon
      Anonymous Coward, 18 Mar 2019 @ 8:10pm

      Re:

      Considering that the readerbase still has no idea who you are, if Masnick is part of a cyberstalking group, they're doing a pretty fucking terrible job.

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

  • identicon
    Pixelation, 18 Mar 2019 @ 5:41pm

    Unintended consequenses

    I wonder how often the unintended consequences are actually the intended outcome of laws like this.

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

    • icon
      Toom1275 (profile), 18 Mar 2019 @ 5:46pm

      Re: Unintended consequenses

      Or when the sole outcome.being considered is "will signing this into law make me look good enough to make those idiots want to vote for me more" -- "Do something" legislation like FOSTA, magazine size limits, the law in the article above, the border wall...

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

  • identicon
    Glenn, 18 Mar 2019 @ 8:42pm

    The biggest problem with fixing stupid is that stupid never really learns--tomorrow's another day, another way to be [stupid].

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

  • identicon
    Anonymous Coward, 19 Mar 2019 @ 4:49am

    New Math

    "This sort of expression is at the very heart of political speech which the First Amendment most strongly protects."

    Using the new math of political cowardice and ill-conceived expediency, state legislatures often miscalculate:

    1 + 4 + 5 + 6 + 7 + 8 + 9 = 0

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

  • icon
    Not_Clarence_Moriwaki (profile), 19 Mar 2019 @ 7:17am

    I am the critic mentioned in this article. Thank you to TechDirt for the coverage. One small clarification, the NDAA made it legal for the president to have the military arrest American citizens and legal aliens in America (not just foreigners) and imprison them indefinitely without charge or trial.

    As Mr. Cushing writes, I thought Clarence Moriwaki should have spoken out about that as representative of our island's public memorial. And I criticized him for his vocal support of his personal friend and our mutual neighbor, Jay Inslee, who voted for that indefinite detention authority. Certainly Mr. Moriwaki should not have had Jay Inslee give the keynote speech at the Bainbridge Island Japanese American Exclusion Memorial's 75th Anniversary ceremony -- I mean "Let It Not Happen Again" is literally written on the memorial wall. But Mr. Moriwaki does not actually value the memorial or its mission except as a partisan tool.

    Mr. Cushing is right about this now defunct cyberstalking law being used by the politically powerful against the rest of us. To see the full story of just how correct he was, please visit http://www.StopClarenceMoriwaki.com and see how the political class used it to silence criticism of themselves, and how Moriwaki supporters now use death threats in their attempt to silence that criticism in a fusion similar to Mussolini's Blackshirts.

    Thanks again to TechDirt for covering this.

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


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Close

Add A Reply

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Follow Techdirt
Techdirt Gear
Show Now: Takedown
Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.