Freedom of Speech

“Cyberstalking” Ban Violates the First Amendment

So a federal district court in Washington just concluded, about a Washington statute that criminalized "anonymous or repeated" speech intended "to harass, ... torment, or embarrass."

|The Volokh Conspiracy |

A Washington "cyberstalking" statute provides,

A person is guilty of [criminal] 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.

Today's decision in Rynearson v. Ferguson, by U.S. District Judge Ronald Leighton, strikes down subsection (b) of the statute:

[Subsection b's] breadth—by the plain meaning of its words—includes protected speech that is not exempted from protection by any of the recognized [First Amendment exceptions, namely obscenity, defamation, fraud, incitement, true threats, and speech integral to criminal conduct] … [It] criminalizes a large range of non-obscene, non-threatening speech, based only on (1) purportedly bad intent and (2) repetition or anonymity.

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," 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….

Moreover, the Supreme Court has consistently classified emotionally distressing or outrageous speech as protected, especially where that speech touches on matters of political, religious or public concern. This is because "in public debate our own citizens must tolerate insulting, and even outrageous, speech in order to provide 'adequate breathing space' to the freedoms protected by the First Amendment." …

Based on the record before the Court it is highly likely that in the final analysis the Court will declare the provision is unconstitutional and therefore unenforceable.

This is a preliminary injunction (hence the statement about what the court "is highly likely" to eventually do), and it runs only in favor of this particular plaintiff; prosecutors aren't strictly bound by it. But if the decision is affirmed on appeal—or if prosecutors choose not to appeal—it seems very likely that Washington prosecutors will generally go along with it.

I'm pleased to say that I represented plaintiff Richard Rynearson in this case; many thanks also to Venkat Balasubramani (Focal Law), who assisted us as pro bono local counsel, to Hyland Hunt (Deutsch Hunt), and to the Electronic Frontier Foundation and the ACLU of Washington, who filed an amicus brief supporting our position. For more on the controversy that led to the case, see this post ("Court Vacates Ban on 'Memes' That Depict Local Community Activist").

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15 responses to ““Cyberstalking” Ban Violates the First Amendment

  1. That seems like an incredibly broad law as well.

    If I’m on a forum where I don’t use my real name (such as here), and call someone a piece of shit and say he should be embarrassed for doing x, am I guilty of it?

    1. If there is any indication in the rest of your post that you have ever had any thoughts to the right of Che, then yes, you are guilty.

    2. Your real name isn’t Junkie?

    3. The law would certainly seem to subject a lot of posts at “discussion” groups to penalties, Including at this site.

  2. So I can’t claim that the democratic party platform is obscene, and sue for each robo-call?
    Damn.

    1. Damnit…I was sipping coffee. Now I have to clean my laptop again.

  3. I think one of the most pressing and genuinely horrifying issues of our time is the push for a 100% non-anonymous internet.

    1. I don’t know about this web site, but most of what you do is passed back to ad groups that analyze what you do and view and write and stick you in adertising buckets.

  4. Does this annoy you?

    1. Does this annoy you?

      1. I’m not touching you!

        1. Mommy! Jonnie’s looking at me!

          No I’m not! Emie’s looking at me!

  5. Hpw does this same reasoning not apply to non-cyber stalking? Following you 24 hours a day isn’t “obscenity, defamation, fraud, incitement, true threats, and speech integral to criminal conduct” and making it illegal “criminalizes a large range of non-obscene, non-threatening speech, based only on purportedly bad intent and repetition.” Does the fact that it’s not anonymous make everything else not matter?

    1. Following you 24 hours a day isn’t speech, so it isn’t protected by the 1A.

  6. Curious that they didn’t come up with a limiting/saving construction that would define (b) better. Not that the legislature deserves it …

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