Federal lawsuit suggests Washington cyberstalking law violates free speech
Does Washington state’s cyberstalking law violate free speech rights? It’s a question we’re soon going to get an answer to, now that a federal lawsuit is moving forward to overturn the state law. It all centers around a Bainbridge Island man accused of cyberstalking a neighbor over what appears to be a political disagreement.
“My client and the neighbor [Clarence Moriwaki] were involved in a political dispute about the detention of American citizens, and what the lessons from the World War II detentions of Japanese Americans can teach us today. The dispute was pretty acrimonious,” Volokh said.
“Mr. Moriwaki then got a restraining order basically limiting my client’s ability to speak about him.” Rynearson’s initial posts were on Moriwaki’s page. Once he blocked him, the speech was then only about Moriwaki, which may have been upsetting but was constitutionally protected, says Volokh.
Rynearson is now challenging the constitutionality of the state’s cyberstalking law. It was originally dismissed by a lower court decision, but that decision was overturned by the 9th Circuit Court of Appeals.
The statute makes it a crime to send messages electronically “with the intent to harass, intimidate, torment or embarrass any other person,” and to anonymously or repeatedly post things online about that person. “So if you post twice online something sharply criticizing a local politician or activist or business,” said Volokh, “and a prosecutor and jury concludes that you had the intent to embarrass that person, then you could be criminally punished.”
Where is the line between free speech and cyberstalking?
For Volokh, the terms of the law are far too broad, and since there is no harassment exception to the first amendment, people are free to criticize other people. The question is: at what point does this type of activity become harassment?
“I don’t like the term harassment. I don’t think it’s a well-defined term,” Volokh said. “If somebody threatens someone, that is punishable. If someone libels someone knowingly or negligently, that could lead to a libel lawsuit. If one makes unwanted phone calls to a person or sends emails directly to them, that could be punished.”
“That’s because it’s speech to a person, but speech about a person — so long as it’s not threatening or libelous — is constitutionally protected. Even if it’s intended to embarrass, even if it’s repeated.”