Federal Judge Throws Out Washington State Cyberstalking Law, Writing It Criminalizes Protected Speech

The Washington State Capitol, 2017.
Photo: Elaine Thompson (AP)

A federal judge in Washington has thrown out the state’s 2004 law prohibiting cyberstalking after finding that its barriers against speech that is intended to “harass, intimidate, torment, or embarrass” were too vague and violated the Constitution, per the Electronic Frontier Foundation.

In his ruling, United States District Judge Ronald Bruce Leighton wrote that the law’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,” as well as that it “criminalizes a large range of non-obscene, non-threatening speech, based only on (1) purportedly bad intent and (2) repetition or anonymity.” Leighton added:

When statutory terms are undefined, Washington courts generally give them their ordinary meaning, including the dictionary definition. 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” incudes “to cause worry or vexation to”... “Embarrass” means “to cause to experience a state of self-conscious distress”... 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 them

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The case involved a retired Air Force Major, Richard Rynearson III, who was a frequent critic of detention provisions in the National Defense Authorization Act (NDAA) of 2012. Rynearson had criticized civic organizations whose purpose was memorializing mass incarceration of Japanese-Americans in concentration camps during World War II, saying that they supported Democratic politicians in favor of the NDAA while criticizing Republicans—and in particular, the judge wrote, multiple Facebook posts including “invective, ridicule, and harsh language (but no profanity, obscenity, or threats)” directed at Bainbridge Island Japanese-American Exclusion Memorial founder Clarence Moriwaki.

Rynearson posted numerous criticisms of Moriwaki, a neighbor, on the latter’s Facebook page after Moriwaki had stated he considered the posts “trolling” and until he was blocked—later creating a group using Moriwaki’s name to continue the criticism.

“He just won’t leave me alone,” Moriwaki said in July 2017, according to the Kitsap Sun. “I told him to stop posting about me, to stop contacting me, and he won’t. He’s a classic cyber bully.”

While Rynearson has not been charged with any crime, Leighton wrote that he had been warned by the Kitsap County Prosecutor that his conduct would be monitored, as well as subjected to a civil protection order from March 2017 to January 2018.

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Leighton noted, however, that while the law was overly broad, in a previous case involving a man convicted of felony cyberstalking for threatening to kill several women, “the conduct or speech (actual threat) fell clearly within the sphere of unprotected speech.”

The Electronic Frontier Foundation hailed the decision in a blog post on Friday, writing that while they opposed online harassment the law “could potentially block the routine criticism of politicians and other public figures that is an integral part of our democracy” and criminalize “perfectly reasonable” conduct.

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“This is all valuable speech that is protected by the First Amendment, and no state law should be allowed to undermine these rights,” the foundation wrote. “We are pleased that the judge has agreed.”

In a statement to Gizmodo, Rynearson wrote, “I am grateful that the courts have recognized that the Constitution protects our right to disagree, and to criticize others, even if some listeners find it uncomfortable. In my view, the right to disagree—sometimes strongly or vociferously—is vital in a free nation.”

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As Engadget noted, Washington state could appeal the decision, though if the ruling holds, “it could force legislators to significantly narrow the scope if it wants a cyberstalking law to remain in place.”

Clarification: 2/24/2019 at 10:50 p.m. ET: A previous version of this post stated that Rynearson had continued to post on Moriwaki’s Facebook page after “being asked to stop.” In an email to Gizmodo, Rynearson pointed us to the Washington State Superior Court ruling vacating the protection order, which found that Moriwaki’s continued discussions with Rynearson via Facebook after the initial request to stop “trolling” demonstrated a “desire to continue engagement up until Moriwaki blocked Rynearson from his Facebook page” on Feb. 5, 2017.

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Rynearson did send a text message later that day to Moriwaki for “comment” for a “new and upcoming blog... about your role as president of the memorial and your support for multiple politicians who expressly voted to make internment happen again.” But he “ceased contact with Moriwaki once there was an unequivocal request to do so,” the Superior Court wrote:

Rynearson did not Facebook message, text message, email, telephone, or otherwise contact Moriwaki after February 5th. There is no evidence Rynearson has posted on Moriwaki’s Facebook page after being blocked. There is no evidence Rynearson contacted Moriwaki telephonically or otherwise after Moriwaki texted him to leave him alone.

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“In that text conversation is the only time he said to not contact him and I ceased at that point,” Rynearson told Gizmodo.

Additionally, this article has been updated with a statement from Rynearson.

[EFF via Engadget]

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Tom McKay

"... An upperclassman who had been researching terrorist groups online." - Washington Post