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Volokh Conspiracy

State Civil Protective Order Doesn't Preclude Federal Challenge to Criminal Harassment Statute

An interesting new Younger abstention case from the Ninth Circuit, arising in our challenge to Washington's very broad criminal harassment statute.


[1.] A Washington state statute criminalizes (among other things) "mak[ing] an electronic communication to … a third party" "with intent to harass, … torment, or embarrass any other person" if the communication is made "[a]nonymously or repeatedly."

This deliberately extends beyond unprotected speech (such as true threats or libel). It deliberately extends beyond unwanted speech said to a particular person and forbids embarrassing speech said about that person. Repeatedly criticizing a politician on your blog, for instance, could send you to jail if a prosecutor and judge or jury concludes that you were intending to "harass," "torment" or "embarrass."

As I mentioned last July, Venkat Balasubramani and Garrett Heilman (Focal Law LLC) and I filed a federal lawsuit challenging this statute. Our client, Richard Rynearson, actually had a brush with the law as a result of some criticism of a local activist: A police department sent the case to the prosecutor's office, concluding that there was probable cause for the prosecution, and though the prosecutor has not filed charges, he suggested to Rynearson's lawyer that he might file charges based on similar conduct in the future.

[2.] But last Fall, our case got derailed by what is called Younger abstention: The federal court abstained from hearing the case because there were state proceedings pending, in this case a state restraining order against Rynearson barring him from saying certain things about the activist. Eventually, that order was reversed on appeal in state court; but when our federal case was filed (the relevant time for Younger purposes), the state order was in place.

Now the classic scenario for Younger abstention is when someone goes into federal court to block his pending prosecution in state court (or, sometimes, pending civil enforcement by the government). The Supreme Court has seen such lawsuits as improperly intruding into state processes, and unduly upsetting the balance of "Our Federalism."

But here, Rynearson was trying to block any future criminal prosecution, something that Younger generally allows. And the existing state process involved a state civil order issued on behalf of a private individual, not a prosecutor; therefore, we argued, the federal proceeding wouldn't interfere with the pending tate proceeding.

Yesterday, the Ninth Circuit agreed with us (in Rynearson v. Ferguson) that abstention wasn't justified here:

[W]e consider whether federal courts should abstain from exercising jurisdiction over a constitutional challenge to a state criminal statute while there are ongoing state court protection order proceedings arguably related to the challenge to the criminal statute. In the circumstances of this case, we conclude that abstention is not appropriate….

Younger abstention is a limited exception to the obligation of federal courts to hear cases within the scope of their jurisdiction. We conclude that the Washington state stalking protection order proceedings against Rynearson did not fit into the narrow category of state cases in which federal abstention was appropriate….

You can read the Ninth Circuit's analysis (which, unsurprisingly, I think is quite right) in the opinion. The case now goes back to federal district court for further proceedings.

[3.] One reason that I particularly enjoyed this process is that my student Taylor de Laveaga not only helped draft the briefs, both in District Court and in the Ninth Circuit, but also split time with me at oral argument (of course, with our client's permission). Our plan was to have Taylor take the first 7½ minutes (half of our allotted 15), with me taking the next 4½ minutes and then saving 3 minutes for my rebuttal.

But she did such a good job both presenting our position and answering the judges' questions that, when her 7½ minutes were up, I got up and just said, "I would be delighted to answer any questions, but in the absence of any, I think my cocounsel has done an admirable job," and waived the remainder of my opening argument time. (Doubters and the unusually interested can see the argument video here.) As we are told,

People yakkity yak a streak and waste your time of day
But Mister Ed will never speak unless he has something to say.

People may tell you that I should follow Mr. Ed's advice more often, but this time I did it, and I think it was exactly the right call.

So I wanted to compliment Taylor here, thank Venkat and Garrett, and also thank the moot court judges who helped prepare Taylor (through three different moot courts): My colleagues Stuart Banner, Beth Colgan, Ken Graham, Sean Hecht, Adam Romero, David Simson, and Steve Yeazell, as well as several experienced practitioners, Terry Bird, A. Berry Cappello, Jeremy Rosen, and John Weston.