The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.
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.
