The Volokh Conspiracy

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Court order bans 'memes' that use photo of local community activist


Clarence Moriwaki is a community activist. Over the past 30 years, he has 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 last year, 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 state judge entered one. 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."

This, I think, violates the First Amendment, which is why I'm helping 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 court expressly found that Rynearson "has no criminal history and has not made any threats implying physical violence towards Mr. Moriwaki" and that it "cannot find any incidents of threats or violence in his past," and the court didn't make any findings that Rynearson's past statements were false and defamatory.

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.) The order includes political criticism—indeed, the whole basis for the restraining order was Rynearson's past political criticism.

To be sure, the order (unlike some other anti-"harassment" orders) doesn't ban all criticism by Rynearson of Moriwaki. But the particular content that it bars is fully protected by the First Amendment and is quite common in public debate. "" domains, for instance, are standard ways to criticize companies, and courts have held that they are protected free speech; similar criticism of particular people is just as constitutionally protected. And of course criticizing people using their photographs is a normal staple of debate about politics and policy: There is no right to stop people from using your photograph outside commercial advertising, and newspapers and TV stations as well as activists routinely rely on this principle.

The past speech by Rynearson about Moriwaki strikes me as likewise fully protected. As I mentioned, the court found it wasn't threatening, and the court made no findings suggesting that it was libelous. One statement mentioned, "I'm outside on the street, in Clarence's analogy, after Clarence put his hand over my mouth and threw me out. So I'm out on the public street now in front of his house talking to some of his guests (our mutual neighbors) as they leave his house, some of which appreciated my comments." But that appeared to be a reference to a figurative street and house, not to a real one: "Clarence's analogy" was Moriwaki's earlier statement that, "my Facebook page is like me hosting a party. Friends are welcome to comment, but as the host I have a responsibility to all my guests to try to keep it civil, and if someone at the party keeps butting in, trying to monopolize conversations, I as the host have the right to ask them please cease and desist." That's likely why the court, as I noted, expressly held that there were no threats of violence in Rynearson's posts—and in any event, the injunction doesn't ban threats, but bans certain uses of Moriwaki's name and photograph.

As best I can tell, Rynearson's page contained no vulgarities or epithets (though those would have been constitutionally protected, too). It started out with comments about the NDAA on Moriwaki's Facebook page (Rynearson had been Facebook friends with Moriwaki) and went on to complaints on that page about Moriwaki's request that those comments stop; but the cure for that was Moriwaki's blocking Rynearson from the Facebook page, as Moriwaki ultimately did. There was also apparently one direct text message to Moriwaki following the banning. There was a comment posted on mutual Facebook friends' pages, criticizing Moriwaki's blocking of Rynearson. There were many comments criticizing Moriwaki on Rynearson's own page about Moriwaki (the one that started being called "Clarence Moriwaki of Bainbridge Island" and was then renamed "Not Clarence Moriwaki of Bainbridge Island"), including memes that used Moriwaki's photograph: "One has [Moriwaki's] photo with barbed wire and a message that Moriwaki supports 'politicians who made indefinite detention without charge or trial 'legal.' " Rynearson also apparently "paid for advertising of the site and those ads for the site appeared in feeds of people who did not sign up to see it."

This is core First-Amendment-protected criticism, related to political issues. It was repeated; but people have a right to speak a lot, and not just a little. It might well be lacking in a sense of proportion, and thus more alienating than persuasive; but it's not for government officials to judge that, whether as to speech by ordinary citizens, campaigns by crusading newspaper columnists or any other speech.

The speech criticized a particular person; but people have a right to criticize people, and not just ideas. Thus, for instance, in Organization for a Better Austin v. Keefe (1971), activists who disapproved of a real estate agent's (apparently lawful) behavior repeatedly leafleted near where the agent lived and went to church, demanding that he change his practices. Indeed, "[t]wo of the leaflets requested recipients to call respondent at his home phone number and urge him to sign the 'no solicitation' agreement." Yet the court struck down an injunction against such leafleting, reasoning,

No prior decisions support the claim that the interest of an individual in being free from public criticism of his business practices in pamphlets or leaflets warrants use of the injunctive power of a court. Designating the conduct as an invasion of privacy, the apparent basis for the injunction here, is not sufficient to support an injunction against peaceful distribution of informational literature of the nature revealed by this record.

Likewise, in NAACP v. Claiborne Hardware Co. (1982), the organizers of a boycott of white-owned stores demanded that black customers stop shopping at those stores. The organizers stationed "store watchers" outside the stores to take down the names of black shoppers who were not complying with the boycott. Those names were then read aloud in local churches and printed in leaflets that were distributed to other black residents. Some of the non-complying shoppers were physically attacked for refusing to go along with the boycott.

Yet the court held that these activities were protected by the First Amendment, despite the backdrop of violence and the attempt to use social ostracism to pressure black shoppers to forgo their legal rights to shop at white-owned stores. Though "[p]etitioners admittedly sought to persuade others to join the boycott through social pressure and the 'threat' of social ostracism," the court held, "[s]peech does not lose its protected character … simply because it may embarrass others or coerce them into action." Even financial liability for such speech was unconstitutional, the court concluded; and it held the same analysis invalidated the injunction against the speech as well.

Similarly, Hustler Magazine, Inc. v. Falwell (1988) upheld Hustler Magazine's right to criticize Jerry Falwell, even in a harsh and vulgar way; and though Falwell was a public figure, Snyder v. Phelps (2011) made clear that Hustler applies to all speech on matters of public concern, even if that speech mentions wholly private figures. (The trial court in this case held that Moriwaki wasn't a public figure, apparently because his government service was in the past and his current activity isn't high-profile enough; but Keefe and the shoppers in Claiborne weren't public figures, either.) And Washington appellate courts have likewise struck down "antiharassment" orders that went beyond unprotected speech, such as libel or threats, even when the speech was much further removed from political debates than the speech in this case. See, e.g., In re Marriage of Suggs (Wash. 2004); In re Marriage of Guthrie (Wash. App. 2015); In re Marriage of Meredith (Wash. Ct. App. 2009). An order that bars speech about a person but "is not specifically crafted to prohibit only unprotected speech" "is an unconstitutional prior restraint."

The trial court's contrary analysis, I think, is unpersuasive. The court reasoned that "The Government has a compelling interest in preventing· Harassment and Stalking" and that "Prohibitions against harassing and stalking behavior do not infringe on First Amendment free speech rights." But Keefe, Claiborne and other cases make clear that critical speech can't be punished simply by labeling it "invasion of privacy" or "coercion"—or, as here, "harassment" and "stalking." "Stalking" in the sense of physically following someone may be unprotected. Certain forms of behavior often labeled "harassment," such as true threats (which many harassment statutes expressly cover) or unwanted telephone calls to the target (rather than speech about the target), may be punishable. But criticism, even repeated criticism, is constitutionally protected. As then-Judge Alito said in a case involving "hostile environment harassment," "There is no categorical 'harassment exception' to the First Amendment's free speech clause."

The court also found that the speech had "no lawful or free speech purpose" but was "done with the intent to harass, [embarrass], intimidate, torment, and retaliate after being limited and blocked from Morikawi's personal Facebook page. The acts were also done to cause damage to Moriwaki's reputation." But the First Amendment protects the right to try to "embarrass" people—especially, though not only, political activists—who you think have done things that should be embarrassing. It protects the right to damage people's reputation through truthful statements and expressions of opinion. That is itself a "free speech purpose," again as shown by Keefe, Claiborne, and other cases.

And that's so even if the target (to quote the court) "experience[s] extreme stress, anxiety, and fear that Lee will damage his reputation and continue to stalk him," if "stalk" means "repeatedly sharply criticize." This is so when someone is fearful that his reputation will be injured by continued criticisms by a local newspaper; and it's equally so when someone is fearful that his reputation will be injured by continued criticisms by a local activist. Doubtless Keefe and some of the non-boycotting black citizens of Claiborne County felt stress because they feared that their critics would damage their reputation and continue their criticisms—but that didn't strip the speech of First Amendment protection.

Finally, the court stated in its findings of fact that Rynearson "has a car that is outfitted with bullet proof windows, armoring, electrified door handles, a smoke screen, cameras, flashing strobes, sirens and a public address system," "has a documented history of angry, inappropriate, name-calling, aggressive online comments to the point he has been banned from multiple online discussion forums," and "has a history of retaliating against those forum owners who have banned his participation through angry comments, personal attacks, and creating memes to taunt them." But the court didn't expressly rely on that in its conclusions of law (and expressly held that this wasn't sufficient to justify including a firearms restriction in the restraining order).

And indeed such behavior, which is perfectly legal, can't justify a restraining order or any other speech restriction. In particular, it's not for judges to decide that speech is unprotected because it's "inappropriate" or unduly "angry" or "taunt[ing]" (setting aside the existing narrow First Amendment exceptions, such as "fighting words," which aren't implicated here). And that a private forum owner exercises his right to ban participants for speech that the forum owner finds inappropriate—a right that I have long supported—doesn't authorize the government to further suppress the participants' future speech.

So the injunction strikes me as unjustified both because it restricts future constitutionally protected speech and because it is based on past constitutionally protected speech. I've long criticized such overbroad injunctions (and overbroad "criminal harassment" or "cyberstalking" statutes), both in blog posts and in a 2013 Northwestern University Law Review article. This case, I think, well illustrates the danger that such restrictions pose, not just to everyday speech about breakups, cheating and similar matters (though even that speech is constitutionally protected) but also to political debate that includes criticism of particular activists.

And yet it also illustrates how trial courts are indeed imposing such restrictions. The Supreme Court caselaw is solidly on the side of First Amendment protection here—but trial courts are often missing that.