Harassment

Court Vacates Ban on "Memes" That Depict Local Community Activist

Richard Rynearson's online criticisms of Clarence Moriwaki, the court held, were protected by the First Amendment, and thus couldn't justify an antistalking order.

|The Volokh Conspiracy |

I blogged about the original order in July: The plaintiff who got the order, Clarence Moriwaki, is a community activist, who has (over the past 30 years) been a city councilman, a candidate for the Washington State Senate, a press secretary for the lieutenant governor and the governor-elect, a director of a congressman's local office, a finalist for county commissioner, a member of the ACLU of Washington Board of Directors and campaign manager for an ACLU of Washington anti-death-penalty campaign. His day job is doing public relations for a wide range of organizations, many with a political bent. And since 2001, he has been the founder, president and now board member of the Bainbridge Island Japanese American Exclusion Memorial Association, "a private non-profit organization building a National Historic Site to commemorate the first [World War II Japanese-American internment center]."

Richard Rynearson is also interested in policy and civil liberties. He has not been politically active, perhaps because he was until recently a major in the Air Force. (He retired in 2016, after 20 years of service.) But he is a vocal critic of the 2012 National Defense Authorization Act provision that allows long-term detention of certain terrorism suspects (for more on the NDAA debate, see here and here). And he is also something of a Fourth Amendment activist: He sued several years ago to challenge what he believed was an unconstitutional half-hour-long detention at a near-border checkpoint, and the case went up to the 5th Circuit, where he lost 2-1.

When Rynearson moved to Washington after returning to civilian life, he was apparently impressed by Moriwaki's work on the Memorial. But Rynearson eventually came to view that Moriwaki's support for the Obama administration was hypocritical, given that (in Rynearson's opinion) the 2012 NDAA would authorize military detention that was similar to the internment of the Japanese. As a result, he started to sharply criticize Moriwaki.

And when Moriwaki responded by seeking a protective order, a Washington Municipal Court judge entered one (even while expressly finding that Rynearson "has no criminal history and has not made any threats implying physical violence towards Mr. Moriwaki"). The order, as usual for such orders, required Rynearson to stay some distance away from Moriwaki. It barred him "from knowingly appearing at any public events [Moriwaki] appears at," which would cover political and policy events. But beyond that, it also stated:

  • "[Rynearson] is prohibited from creating or maintaining Internet websites, Facebook pages, blogs, forums, or other online entities that use the name of personal identifying information of [Moriwaki] in the title or domain name."
  • "[Rynearson] may not use the photograph of [Moriwaki] to create memes, posters, or other online uses."

As I noted in July, I think this violates the First Amendment, which is why I agreed to represent Rynearson, pro bono, in challenging the order. The order is not limited to constitutionally unprotected speech, such as defamation or threats. Nor is it based on any findings of past defamation or threats. The order applies to non-misleading statements, such as calling a site "Stop Clarence Moriwaki" or some such. (Rynearson had before labeled a Facebook page "Clarence Moriwaki of Bainbridge Island," though the contents of the page made clear that it was a gripe page, not ostensibly Moriwaki's own views; and in any event, he soon changed it to "Not Clarence Moriwaki of Bainbridge Island," and the order would cover such clearly critical titles as well.) And the order includes political criticism — indeed, the whole basis for the restraining order was Rynearson's past political criticism.

I'm delighted to report that yesterday, Kitsap County (Wash.) Superior Court Kevin D. Hull reversed the order. Here are some key excerpts from the decision:

State v. Noah [Wash. Ct. App. 2000] provides persuasive guidance as to whether conduct "serves no legitimate or lawful purpose." In Noah, the respondent picketed outside on the sidewalk in front of a therapist's office. The respondent was protesting the legitimacy of recovered memory therapy. He carried sigus that stated: "Voodoo Therapy Practiced Here," "David Calaf, Mr. Windbag! Psychotherapist," "Big Bucks For Therapy Spreading Child Abuse Hysteria," and "David Calaf Voice of Hatred And Revenge." The Court of Appeals found that .the picketing conduct could not serve as the basis of an anti-harassment order as it involved a legitimate and lawful purpose. The conduct was an exercise of the right of free speech, and therefore not unlawful….

[I]t is difficult to reconcile how posting politically themed messages on a Facebook account about Moriwaki's role with the Memorial Association can be deemed unlawful harassment while the act of picketing directly outside a therapist's office in protest of the use of recovered memory therapy was considered constitutionally protected speech by the Washington State Court of Appeals in Noah. Both the posting on Moriwaki's personal Facebook page (until Moriwaki blocked Rynearson from his page), as well as the subsequent creation of the "Clarence Moriwaki of Bainbridge Island" Facebook page are an analogous extension of protected political speech or "picketing" on the internet…. Whether Moriwaki is a "limited public figure," or simply a private individual, Rynearson's public internet postings opining about Moriwaki's involvement with the Memorial Association are subject to First Amendment protections….

Moriwaki asserts that Rynearson's speech towards and about him is trolling, bullying and harassing. However, as the Court of Appeals noted over 20 years ago, Washington's unlawful harassment statute is "not designed to penalize people who are overbearing, obnoxious or rude." Indeed, as stated in Snyder v. Phelps, in "public debate [we] must tolerate insulting, and even outrageous, speech in order to provide adequate 'breathing space' to freedoms protects by the First Amendment." United States Supreme Court precedent firmly establishes a 'longstanding refusal' to allow civil remedies 'because the speech in question may have an emotional impact on the audience.'" …

Rynearson's creation of the "Clarence Moriwaki of Bainbridge Island" Facebook page is neither defamatory or fraudulent. The Facebook page does not purport to be run by Moriwaki, nor attempt to convince anyone that it is.

The elements a plaintiff must establish for defamation are "falsity, an unprivileged communication, fault, and damages." The Facebook posts are protected speech and not defamatory. The posts largely relate to Rynearson's objections to NDAA and related proposed state legislation as well as his opinions about Moriwaki's involvement with the Memorial Association and challenges to Moriwaki's stated opinions. The trial court did not make any findings that Rynearson posted false statements….

Rynearson's internet postings critical of Moriwaki's role with the Memorial Association is permissible and protected speech. Rynearson's conduct undoubtedly and understandably caused significant and real annoyance and distress to Moriwaki, particularly with his persistence in posting. But Rynearson ceased contact with Moriwaki once there was an unequivocal request to do so. [The court is using "contact" here to refer to messages sent directly to Moriwaki, and excluding items posted about Moriwaki, which did continue but which the court found to be constitutionally protected. -EV] By blocking Rynearson, Moriwaki was able to prevent any further contacts from Rynearson via Facebook. Rynearson has likewise not contacted Moriwaki once Moriwaki texted him to leave him alone.

Rynearson did not commit "stalking conduct" as that term is defined by RCW 7.92.020(3).Accordingly, issuance of the stalking protection order below was an error of law.

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  1. and meanwhile, the judge who issued the obvious non-Constitutional order walks free, able to continue his illegitimate use of his authority.

    1. I appreciate the concern about unconstitutional judicial rulings, and the argument for deterring such rulings — but let me ask you this:

      If lower court judges were fired for being reversed on appeal on constitutional grounds, do you think higher court judges would be as likely to issue such reversals? Or might they be tempted to help out their colleagues by resolving close calls (or even not very close ones) in favor of upholding the orders?

      1. EV,

        Maybe not such severe consequences for a single reversal, but maybe there ought to be a lifetime limit on the number of reversed decisions and once a judge hits it, he’s out.

        1. Doesn’t that just kick the can down the road?

          1. I agree, nonzense. There are no perfect answers because there are no perfect people. To allow summary dismissals for some bad rulings throws power to others who will likely have their own imperfections.

            EV mentions upper people protecting their friends/colleagues. That occurs in all industries — judges, lawyers, professors, docs, and so forth. In Hollywood, Harvey Weinstein was protected by all the best people until it became politically impossible to do it anymore. I agree it’s best not to feed that monster.

            MatthewSlyfield proposes something like a three-strikes rule (or maybe a 20-strikes rule, but whatever). I’d think that could lend itself to situations covered as judicial misconduct, though (IANAL) I think that focuses on violations of ethics or impartiality, not necessarily poor reasoning or ideology. If it is so blatant or common as to fall in that category, perhaps it could lead to some kinds of sanctions.

      2. Don’t know how it works in WA state but in the case of a state municipal (i.e., non-Article III) judge I wouldn’t be surprised if there are, generally speaking, means to remove someone who lacks “appropriate judicial temperament.” ISTR that some guy in Alabama got booted – twice – from his position as Chief Justice of that state’s Supreme Court for what amounted to the “illegitimate use of his authority.”

      3. That depends on who is doing the firing.

        Higher court judges should have authority to fire lower court judges just as surely as the President is able to fire lower level executive branch officials.

        Otherwise, higher courts stop being higher courts.

        1. That’s nonsensical; that’s not what “higher court” means. (Note that higher courts can’t hire lower court judges either. )

      4. “Or might they be tempted to help out their colleagues…”

        Given the huge amount of “help” that they already give police and prosecutors, I guess this question answers itself.

    2. Perhaps to avoid the professor’s concern the judge should be removed by others after such an obvious abuse of court power?

      It appears others have this train of thought if the @removesara page on Facebook is to be believed. I for one wish them success.

      https://www.facebook.com/removesara/

  2. Moriwaki is …. a member of the ACLU of Washington Board of Directors and campaign manager for an ACLU of Washington anti-death-penalty campaign

    I wonder what the rest of the ACLU board thinks of it.

    1. Well, the ACLU has always been flexible on what it considers ‘civil liberties’. For example, despite ‘Heller’, they still consider the right to bear arms a collective, rather than individual, right.

      1. Yes, but except recently with some hints of not liking hate speech, they’ve usually been pretty protective of free speech.

      2. The ACLU of Washington filed an amicus brief in support of the professor’s ongoing federal suit. I think that is the group Moriwaki was in the past associated with. They’re on the right side of this issue.

        https://www.aclu-wa.org/cases/rynearson-v-ferguson

  3. How does this case compare to the California case where Mark Feigin was posting insulting comments on the Islamic Center of Southern California’s Facebook page? Asides that it’s California.

    1. Pretty sure the Islamic Center of Southern California case involved an actual death threat, which is not protected (also, might not have been Mark Feigin, but that’s not really important for the comparison). Rynearson sounds like he’s been complaining about Moriwaki’s politics, and insulting him, which is definitely legal.

      1. I’m not sure Rynearson even insulted Moriwaki, except inasmuch as somebody saying something about another that they don’t like “insults” them. Rynearson’s complaint seems to be that the spokesperson for a public non-profit about the Japanese American internment should not be vocally praising politicians who made indefinite military detention without charge or trial legal through the NDAA of 2012.

      2. There were two separate charges in the Feigin case. A misdemeanor charge concerning Feigin’s posting of insults on the Islamic Center’s Facebook page. There is also a felony charge that involved threatening phone calls that were made to the Islamic center, which Feigin denies. Mr. Volohk posted the about both cases about 3 weeks ago.

        1. Oh, you’re right. I guess I forgot the details. Yeah, that misdemeanor charge seems pretty baseless, hopefully it’ll get thrown out. Feigin’s comments do seem to have been more aggressive and insulting than Rynearson’s, but that should hardly matter. It sounds like they charged him with this stuff since they were worried that the evidence didn’t support convicting him of the threatening phone call. They should just drop all this and apologize to the guy.

  4. Needs more benchslapping.

  5. I suspect the prosecutors will push for some kind of token plea deal (on the felony charge) to make the whole thing go away. But Feigin seems like a zealot of sorts (no offense intended to him) and will dig in for a complete drop of the charges. I tried to look-up the docket on the felony case, but was not able to. But I’m sure I don’t know how to navigate to the right place.

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