Case Summary and Outcome

A US District Court in Tacoma Washington declared a state cyberstalking statute to be facially unconstitutional and hence granted a preliminary injunction on its application. The case was brought by Rynearson, an online activist who regularly engaged in caustic advocacy campaigns which targeted public and political figures on issues related to civil liberties. The Court affirmed Rynearson’s claim that the cyberstalking statute was overbroad  and that it criminalized speech protected by the First Amendment in so far as it targeted communications “with intent to harass, intimidate, torment, or embarrass any other person, . . . anonymously or repeatedly.” Relying on established case law, the Court affirmed the long tradition in the US of protecting anonymous speech which “allows individuals to express themselves freely without fear of economic or official retaliation…[or] concern about social ostracism.” The Court justified the preliminary injunction on the grounds that his online advocacy exposed him to potential future prosecution under the Cyberstalking Statute, which had an unconstitutional chilling effect on his political activities.

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Facts

Rynearson is an online activist who writes on a range of topics including civil liberties, police abuse, the constitutionality of indefinite-detention, and the expansion of executive authority. His criticisms frequently target public figures and government officials and are caustic. One of his key online campaigns questioned the legality of the National Defense Authorization Act (NDAA) of 2012 which authorized the detention of American citizens without trial under the laws of war. He regularly targeted politicians and public figures on Facebook who either supported the NDAA or failed to condemn it.

In a series of posts in February 2017 he called for Clarence Moriwaki, founder of the Bainbridge Island Japanese-American Exclusion Memorial (“Memorial”), to be removed from the board and as spokesperson for the Memorial on the grounds that he disproportionately criticized Republican leadership while remaining silent on the Democrats’ policies. The posts included “invective, ridicule, and harsh language (but no profanity, obscenity, or threats) intended to criticize or call into question the actions and motives of these civic leaders and other public figures.” [p. 4] In response, Moriwaki brought suit and was granted a civil protection order by the Bainbridge Island Municipal Court. The order invoked a Cyberstalking Statute RCW 9.61.260 to bar Rynearson from using Moriwaki’s name in the titles or domain names of any of his webpages, among other restrictions. On appeal, the Kitsnap County Superior Court dismissed the stalking protective order finding that the impugned conduct and communications were constitutionally protected.

Despite the dismissal of the previous order, and in anticipation of potential future actions, Rynearson brought the present motion arguing that the related Cyberstalking Statute RCW 9.61.260(1)(b) was facially overbroad and therefore should be ruled unconstitutional under the First Amendment to the United States Constitution.

Electronic Frontier Foundation and American Civil Liberties Union of Washington submitted a Brief of Amici Curiae in Support of Plaintiff’s Motion for Preliminary Injunction.

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Decision Overview

Honorable Ronald b. Leighton delivered the decision of the U.S. District Court of Washington at Tacoma.

The Court first had to establish whether Rynearson had standing to bring the challenge in light of the dismissal of the stalking protective order. Second, the Court had to assess whether the Cyberstalking Statute was sufficiently overbroad and unconstitutional to require injunctive relief.

The Court found Rynearson had standing on the grounds that his online advocacy exposed him to potential future prosecution under the cyberstalking statute, which had an unconstitutional chilling effect on his political activities.  Moreover, the Court stressed that Rynearson’s communications and activities aimed “to hold civic and political leaders accountable” which is “at the heart of political speech which the First Amendment most strongly protects.” [p. 3]

Next the Court turned to the question of the constitutionality of the Cyberstalking Statute RCW 9.61.260 (1). Washington was one of the first states to criminalize cyberstalking and in 2004 it enacted the following:
“A person is guilty of cyberstalking if he or she, with intent to harass, intimidate, torment, or embarrass any other person, and under circumstances not constituting telephone harassment, makes an electronic communication to such other person or a third party:

(a) Using any lewd, lascivious, indecent, or obscene words, images, or language, or suggesting the commission of any lewd or lascivious act;

(b) Anonymously or repeatedly whether or not conversation occurs; or

(c) Threatening to inflict injury on the person or property of the person called or any member of his or her family or household.

The Court affirmed Rynearson’s claim that 9.61.260(1)(b) “criminalizes plainly protected speech under the First Amendment” in so far as it targets communications “with intent to harass, intimidate, torment, or embarrass any other person, . . . anonymously or repeatedly whether or not conversation occurs.” (emphasis added by the Court). [p. 7]

Reviewing established case law, the Court identified a list of “well-defined and narrowly limited” types of unprotected speech, namely:

1. obscenity, Roth v. United States, 354 U.S. 476;
2. defamation, Beauharnais v. Illinois, 343 U.S. 250, 254-255 (1952);
3. fraud, Virginia Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976);
4. incitement, Brandenburg v. Ohio, 395 U.S. 444, 447-49 (1969);
5. true threats, Watts v. United States, 394 U.S. 705 (1969); and
6. speech integral to criminal conduct, Giboney v. Expire Storate & Ice Co., 336 U.S. 490, 498 (1949). (p. 7)

The Court noted that speech intended to “harass, intimidate, torment, or embarrass” was not included in the above list of unprotected speech, and further, the statute fails to define those terms. The default definition in such situations reverts to the plain dictionary meaning of the terms, which in the present case would mean that any speech causing “a state of self-conscious distress” (embarrass) or is found to “vex, trouble, or annoy continually or chronically” (harass) could be subject to criminal sanction. The statute criminalized non-threatening and non obscene speech based largely on alleged harm from its repetition, anonymity, or intent. [p. 8] Under such circumstances, the Court found that straightforward public criticism of public officials could easily result in criminal prosecution based on the “plain meaning view of the statute,” which required a “prompt curative response.” [p. 9]

The Court juxtaposed the present case with a previous challenge to the constitutionality of the Cyberstalking Statute in Washington v. Stanley where the circumstances were substantively different. In Stanley, the Washington Court of Appeals found that the term harassment was not overly broad and that the speech constituted true threats, and hence was not protected.

The Court then discussed the long tradition in the US of protecting anonymous speech which “allows individuals to express themselves freely without fear of economic or official retaliation…[or] concern about social ostracism.” It quoted at length from U.S. v. Cassidy which declared a similar federal stalking statute to be unconstitutional recognizing that anonymous speech has been an important mechanism for “persecuted groups and sects…throughout history,” without which they could not “criticize oppressive practices and laws.” [p. 11]

The US Supreme Court also has established case law protecting “insulting, and even outrageous, speech in order to provide ‘adequate breathing space’ to the freedoms protected by the First Amendment.”

The Court concluded that the plain meaning of “anonymous speech uttered or typed with the intent to embarrass as person…is protected speech,” and therefore RCW 9.61.260 (1) (b) was facially unconstitutional.

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