The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Washington law provides,
A person is guilty of intimidating a public servant [a felony] if, by use of a threat, he or she attempts to influence a public servant's vote, opinion, decision, or other official action as a public servant.
"[T]hreat" includes, alongside threats of crime and a few other kinds of conduct (such as revealing embarrassing secrets), "communicat[ing]" "the intent"
(i) To bring about or continue a strike, boycott, or other similar collective action to obtain property which is not demanded or received for the benefit of the group which the actor purports to represent; or
(j) To do any other act which is intended to harm substantially the person threatened or another with respect to his or her health, safety, business, financial condition, or personal relationships.
Now here's the theory from an open letter to Washington AG Robert Ferguson by Working Washington, a progressive advocacy group:
As you know, on May 2nd, a top Amazon executive stated the company was "putting a pause" on expansion in Seattle in an attempt to influence the city council to reject a proposed $0.26/hour tax on the largest companies in the city to address our housing and homelessness crisis. This was a clear threat by Amazon to do substantial harm to the business and financial condition of the city of Seattle if public officials did not act as they demanded.
It's the sort of thing you might expect from a subprime mob boss lording it over a company town—and that's not just a metaphor.
It's a felony under state law to threaten substantial harm to the business or financial condition of any person, corporation or unincorporated association in an attempt to influence the vote or any other official action of a public servant. We believe there is abundant evidence Amazon has broken that law, and we urge you to investigate and prosecute Amazon for this serious crime.
[The letter quotes the statute above, and adds: -EV] [Under Washington law, "person" is defined] as including corporations, which means that this law protects municipal corporations such as the City of Seattle….
Because the city budget depends in part on construction-related revenue, Amazon's "pause" was immediately and universally interpreted by politicians, journalists, and the public at large as a threat to inflict substantial harm on the business and financial conditions of the city, as well as on homeless individuals in need of services. There is certainly a possibility that the full array of impacts of any actual Amazon "pause" could also include reduced pressure on housing prices and increased opportunity for other tech companies to grow — and therefore fewer people living on the streets and a stronger and more diversified economy. However, in order to qualify as a criminal threat, the statements at issue do not need to be a threat to take action that would necessarily cause harm, they need only be statements of an intent to take action that itself reveals an intent to inflict that injury.
These facts add up to a clear violation of RCW 9A.76.180: Amazon threatened to harm substantially the business and financial condition of the corporate person of the city of Seattle in order to attempt to influence the decision of the public servants who serve on the Seattle city council.
Working Washington's theory, of course, would criminalize a vast range of ordinary political action. It would criminalize an advocacy group's threatening to boycott a city if the city council doesn't change some law that the threatener thinks unjust: After all, under that theory, threatening a city with the loss of revenue is threatening to do an act that's "intended to harm substantially … another [person, including a city,] with respect to his or her … business[ or] financial condition."
It would criminalize legislator A's threat to vote against a law that would benefit legislator B's constituents, unless the other legislator voted in favor of a law that would benefit legislator A's constituents.
It would criminalize an advocacy group's public statement that it would urge its members to vote against any legislator who supported some law that the advocacy group thought was oppressive. That, too, after all, would be threatening to do an act "intended to harm substantially" the legislator "with respect to his or her … financial condition," since losing office means losing the salary that comes with it.
The list could go on.
Part of the fault here, of course, is with the Washington statute, which is written vaguely and broadly. But, as best I can tell, Washington officials have avoided this problem by reading the statute as sensibly limited by First Amendment principles, and by normal political custom: Publicly threatening to do a legal act that would legally deprive the government of revenue, as a means of trying to pressure government officials, is clearly protected by the First Amendment, and likewise for the other examples I gave; for just one of many cases on the subject, see the Texas Court of Criminal Appeals' decision in the Rick Perry prosecution. (Indeed, one could read another part of the definition of "threat" as implicitly immunizing some such threats: The statute also expressly covers threats "[t]o bring about or continue a strike, boycott, or other similar collective action to obtain property which is not demanded or received for the benefit of the group which the actor purports to represent," which might be read as implicitly excluding other threatened strikes, boycotts, or collective action—and would thus exclude from the statute Amazon's own threatened corporate action in this very controversy. But Working Washington is obviously not taking such a narrowing reading of "threat.")
Certainly left-wing advocacy groups have long used such tactics, as have businesses. This particular advocacy group, however, seems willing to demand felony prosecution for such normal political action. Its political opponents, it thinks, aren't just wrong, and don't just deserve to be taxed: They deserve to go to prison, for playing the same sort of political hardball that advocacy groups routinely play. Working Washington and many other groups like it have been all about using economic and political power to accomplish their ends (as is the norm in a democracy). But off to jail with those who similarly try to use their economic and political power to accomplish the opposite ends.