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.

Comments

[FlameCCT]

Nothing like practical experience instead of theory!
http://newsroom.ucla.edu/stori.....th-circuit

[Eugene Volokh]

How about practical experience coupled with theory?

[perlchpr]

So... does this mean that the federal court is going to hear the case now? Unless I misunderstood (which is always possible) the law still stands as is and could still be used as a club against anyone else or even that same guy again?

[Eugene Volokh]

Right on both counts -- the law is still in effect, but our challenge to it can now proceed again.

[perlchpr]

OK. Cool.

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.

That sentence was the one that confused me. Not being a person who deals with the courts a lot, I wasn't sure if that meant that the case had been permanently turned down. 🙂

[Stephen Lathrop]

"It deliberately extends beyond unwanted speech said to a particular person and forbids embarrassing speech said about that person."

Volokh repeatedly returns to a distinction he is fond of?the distinction between speech to a person, and speech about a person. It's a distinction which might have had reasonable basis in the pre-internet age?to distinguish harassment from other kinds of speech. A great deal of the usefulness of that distinction?pre-internet?depended on the unavailability to most speakers of the power to publish at will. Volokh continues to write as if that were still so, and of course it is not.

Now, Volokh's antique distinction sorts poorly with the internet phenomenon of weaponized speech. Weaponized speech is a new thing in the world. It leverages the power of cost-free anonymous publishing to deliberately inflict real damage on selected targets. By that invention, the meaning of so-called "speech about a person," has been transformed. Now it can be, and too often is, merely the first step in a coordinated attack. Speech about a person has in many instances become the equivalent of illuminating with a target-identifying laser beam the specific target which other weapons will instantly be deployed to destroy.

Washinton's law is unambiguously structured to interdict those attacks at the target identification stage, before the damage is done. Volokh ought to leave it alone.

[Bob from Ohio]

You really don't like free speech much, do you?

"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.""

You likely think Trump is a mortal danger but are willing to give prosecutors tools like this Washington law. Amazing.

EV is standing up for the American tradition of free speech.

[Stephen Lathrop]

I don't at all like weaponized speech about non-public figures. I don't much care for weaponized attacks on public figures. But particularly in the case of political figures, I am content with long tradition and legal practice, which lets the law treat more leniently attacks on those. Volokh's willingness to conflate those two quite different cases shows he is less than forthright in his comment here.

I have little doubt EV thinks he is standing up for the American tradition of free speech. And I have even less doubt that as a practical matter he is doing free speech no favors. Instead, argument in the style Volokh champions will energize opposition to speech freedom.

The approach EV has chosen, to insist that none of the changes wrought by the internet make any difference in the way the law should respond to offensive speech, will not be widely shared, nor long shared generally. People disagree as a matter of fact. To the extent EV advocates a speech regime widely viewed as new and intolerable, he brings traditional notions of speech freedom into disrepute.

I also conclude that much of the support EV gets for these positions comes from right wing fans of weaponized speech, who do hope to use it to torment and damage non-public figures, and make their victimization exemplary and fear-inducing for any others who oppose right wing politics, or right wing notions of social organization. That is a very bad thing, and I oppose it.

[Stephen Lathrop]

Above, "offensive speech," should have been "offensive and damaging" speech, in keeping with the notion that weaponized speech is damaging.

[David Nieporent]

Now, Volokh's antique distinction sorts poorly with the internet phenomenon of weaponized speech. Weaponized speech is a new thing in the world.

It's called "gossip," it's not new, and it's protected speech.

[Stephen Lathrop]

History offers few examples, if any, of "gossip" about a non-public figure, carried on by means of world-wide publishing, with multiple publishers participating. A singular feature of "gossip" in its customary form is its transient and ephemeral character?completely unlike weaponized speech attacks on the internet, which live forever.

Your resort to, ". . . and it's protected speech," is just question begging.

[Publiosity]

"Volokh's antique distinction?"

What are you suggesting here? Your intent isn't to embarrass the good professor is it? Think a judge or jury could be convinced that is your intent?

Hopefully somebody on your hypothetical jury realizes you are merely criticizing somebody publicly and have a First Amendment right to do so.

[nonzenze]

It's not like our country has a history of anonymous speech.

In many ways actually, the pre-revolution use of anonymous speech to criticize the crown did 'deliberately inflict real damage' and was the 'first step in a coordinated attack'.

[Stephen Lathrop]

Indeed, nonzenze, and so did tar and feathers inflict real damage. But no law at the time required the British sovereign to just sit and take it, which is what Volokh argues for our own case in the here and now. The events you cite were part and parcel of a contest over sovereignty, with no holds barred. If you wish to suggest such a contest should begin today, or will soon be needed for the governance of the U.S., then I think you are unwise.

Meanwhile, it is foolishness to compare as a matter of principle significant events from the history of America's founding with present scurrilous conduct mobilizing weaponized speech against non-public figures. If you are unclear why that distinction matters, then we have no basis for discussion.

[David Nieporent]

If you are unclear why that distinction matters, then we have no basis for discussion.

I am clear that the distinction does not matter.

[nonzenze]

But no law at the time required the British sovereign to just sit and take it

Indeed. It was in fact just this fact that motivated our current state of affairs.

... weaponized speech against non-public figures. If you are unclear why that distinction matters, then we have no basis for discussion.

Insofar as 'weaponized speech' is a sensible category with discernible boundaries, sure. I can even agree with everything you've said so long as I adopt the simplest definition, which is that 'weaponized' means 'unprotected' speech like libel, false light, true threats, imminent lawlessness, etc . . .

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[MonitorsMost]

Very cool and very cool to see you working with an ACS student is too. Shows that we can all get along despite are legal and political differences and sometimes even agree on things to boot.