U.S Federal Judge Throws Out State Cyberstalking Law, Writing It Criminalises 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 recognised 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

The case involved a retired Air Force Major, Richard Rynearson III, who was a frequent critic of detention provisions in the National Defence Authorization Act (NDAA) of 2012. Rynearson had criticised civic organisations whose purpose was memorializing mass incarceration of Japanese-Americans in concentration camps during World War II, saying that they supported Democratic politicians in favour of the NDAA while criticising 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 neighbour, on the latter’s Facebook page after being asked to stop 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.

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 criminalise “perfectly reasonable” conduct.

“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.”

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.”

[EFF via Engadget]

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