The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Volokh Conspiracy

"Cyberstalking" Ban Violates the First Amendment

So a federal district court in Washington just concluded, about a Washington statute that criminalized "anonymous or repeated" speech intended "to harass, ... torment, or embarrass."


A Washington "cyberstalking" statute provides,

A person is guilty of [criminal] cyberstalking if he or she, with intent to harass, intimidate, torment, or embarrass any other person, and under circumstances not constituting telephone harassment, makes an electronic communication to such other person or a third party:

(a) Using any lewd, lascivious, indecent, or obscene words, images, or language, or suggesting the commission of any lewd or lascivious act;

(b) Anonymously or repeatedly whether or not conversation occurs; or

(c) Threatening to inflict injury on the person or property of the person called or any member of his or her family or household.

Today's decision in Rynearson v. Ferguson, by U.S. District Judge Ronald Leighton, strikes down subsection (b) of the statute:

[Subsection b's] breadth—by the plain meaning of its words—includes protected speech that is not exempted from protection by any of the recognized [First Amendment exceptions, namely obscenity, defamation, fraud, incitement, true threats, and speech integral to criminal conduct] … [It] criminalizes a large range of non-obscene, non-threatening speech, based only on (1) purportedly bad intent and (2) repetition or anonymity.

When statutory terms are undefined, Washington courts generally give them their ordinary meaning, including the dictionary definition. The dictionary definition of "harass" includes "to vex, trouble, or annoy continually or chronically," and the meaning of "torment" incudes "to cause worry or vexation to." "Embarrass" means "to cause to experience a state of self-conscious distress." As a result even public criticisms of public figures and public officials could be subject to criminal prosecution and punishment if they are seen as intended to persistently "vex" or "annoy" those public figures, or to embarrass them….

Moreover, the Supreme Court has consistently classified emotionally distressing or outrageous speech as protected, especially where that speech touches on matters of political, religious or public concern. This is because "in public debate our own citizens must tolerate insulting, and even outrageous, speech in order to provide 'adequate breathing space' to the freedoms protected by the First Amendment." …

Based on the record before the Court it is highly likely that in the final analysis the Court will declare the provision is unconstitutional and therefore unenforceable.

This is a preliminary injunction (hence the statement about what the court "is highly likely" to eventually do), and it runs only in favor of this particular plaintiff; prosecutors aren't strictly bound by it. But if the decision is affirmed on appeal—or if prosecutors choose not to appeal—it seems very likely that Washington prosecutors will generally go along with it.

I'm pleased to say that I represented plaintiff Richard Rynearson in this case; many thanks also to Venkat Balasubramani (Focal Law), who assisted us as pro bono local counsel, to Hyland Hunt (Deutsch Hunt), and to the Electronic Frontier Foundation and the ACLU of Washington, who filed an amicus brief supporting our position. For more on the controversy that led to the case, see this post ("Court Vacates Ban on 'Memes' That Depict Local Community Activist").