Politician Uses Bad Cyberharassment Law To Shut Down Critic; Critic Hoping To Have Law Struck Down
from the thank-you-for-calling-our-attention-to-this-terrible-law dept
Lots of anti-harassment laws have been written over the years. The creation of these laws has sped up as legislators look to find some way of handling cyberbullying and online harassment. These laws have been uniformly bad. Those that make it to governors' desks are often struck down shortly thereafter by courts.
The problem is legislators try to target certain behavior with these laws, but seldom consider the amount of protected speech that will be caught in the laws' webbing. Or maybe these thoughts never enter the minds of legislators, who tend to write these bills badly and broadly.
We've seen multiple statutes come tumbling down after a Constitutional challenge. Eugene Volokh -- along with Venkat Balasubramani -- is challenging Washington state's harassment law over its stripping of free speech protections.
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.”
There are several problems with the law, not the least of which is its addition of anonymity to the list of criminal stipulation. As Volokh notes, the law could be used to imprison bloggers who repeatedly criticize politicians -- an activity the term "blogging" is pretty much synonymous with.
Raising the challenge is Richard Rynearson, a retired Air Force major who has repeatedly criticized politicians for failing to condemn the 2012 National Defense Authorization Act, which authorizes the indefinite detention of US citizens thanks to our engagement in the Forever War on Terrorism.
And it's no longer a hypothetical question of whether Washington's anti-harassment law can be used to prosecute people for criticizing politicians. There are potential criminal charges awaiting Rynearson, thanks to a local politician's decision to leverage this law against a critic.
Rynearson, of Bainbridge Island, has repeatedly written posts that criticize — but don't threaten — Clarence Moriwaki, a key activist behind the formation of the Bainbridge Island Japanese American Exclusion Memorial, commemorating the World War II internment of Japanese Americans.
He insists that those who condemn the internment should also strongly speak out against the government's indefinite detention powers in the war on terror, but that Moriwaki hasn't.
After Moriwaki obtained a temporary restraining order and filed a police report last spring, saying he was being harassed by incessant text messages and Facebook posts, investigators recommended that Rynearson be charged with cyberstalking.
A deputy prosecutor in Kitsap County suggested in an email to Rynearson's lawyer in that matter the office might file charges if his behavior continued, but he has not been charged.
Volokh and Balasubramani have filed a motion [PDF] asking the court for an immediate injunction preventing the enforcement of the law while it's being challenged in court. Hopefully, this temporary injunction will be followed by a permanent ban on enforcement, because it's an unconstitutional law.
The breadth of the statute extends in several dimensions. First, the intent provision — sweeping in speech that a jury might find was intended to “harass, intimidate, torment, or embarrass any other person” — reaches broadly. The terms “harass, intimidate, torment, or embarrass” are not defined by the statute. The Washington Supreme Court, in a case examining the similarly-worded telephone-harassment statute, has defined “intimidate” to include “compel[ling] to action or inaction (as by threats),” Seattle v. Huff, 767 P.2d 572, 576 (Wash. 1989), but it did not provide a definition for the other proscribed purposes.
When statutory terms are undefined, however, Washington courts generally give them their ordinary meaning, including the dictionary definition. See id. (defining “intimidate” by reference to definition in Webster’s Third New International Dictionary). The dictionary definition of “harass” includes “to vex, trouble, or annoy continually or chronically,” Webster’s Third New International Dictionary, Unabridged (online ed. 2017), and the meaning of “torment” includes “to cause worry or vexation to,” id. Finally, “embarrass” means “to cause to experience a state of self-conscious distress.” Id. 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 or make them “self-conscious” about something.
The granting of a temporary injunction rests on the plaintiff's ability to prove he's being harmed. To date, Rynearson hasn't been arrested, but the local prosecutors have refused to say whether they're taking any action or are dropping the complaint against the blogger. So, it's not a case of hypotheticals. Others criticized by Rynearson could file similar complaints under the harassment law, hoping to nudge prosecutors towards bringing criminal charges.
The permaban, however, hinges on the First Amendment. Given the language used in the law, it certainly doesn't appear the statute can be read to steer clear of infringements on protected speech. This law was passed in 2004, but no one felt like abusing it to silence criticism until just recently. Now, the law will finally be examined by a federal court where it's unlikely to withstand Constitutional scrutiny.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: 1st amendment, anti-harassment, cyber harassment, free speech, harassment, washington
Reader Comments
Subscribe: RSS
View by: Time | Thread
anyone else feel slightly chilled?
[ link to this | view in chronology ]
“The mean blogger hurt my feelings by doing what op-ed writers do on far-less-regular basis” does not seem like the kind of justification for stripping someone of their right to express themselves.
[ link to this | view in chronology ]
suycky poo poo waaaaa
[ link to this | view in chronology ]
Bounce it back.
File the complaint, watch Clarence dance.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
But technically
[ link to this | view in chronology ]
Posting critical or embarrassing things online is completely legit but if the claims about the frequent harassing texts directly to him (particularly after being asked to stop) seem to meet a reasonable standard for what most people would consider harassment. Obviously, indirect posts should be legal since the 'victim' is opting in to seeing them if they choose to view them and legal remedies for false defamatory statements already exist.
[ link to this | view in chronology ]
Re:
If Moriwaki did not have a text alert system for new search results related to his name, any potential harassment charge would depend on who was sending texts to Moriwaki. The original article does not say if Moriwaki had directly accused Rynearson of sending any text messages. If Rynearson was not sending those messages, he should not be held legally liable for that. Even if he was doing that, he should only be charged with harassment for those specific actions, not for his continual criticism of Moriwaki and other politicians.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Rynearson did not stalk Moriwaki
Appeals court knocked down the unlawful protection order and found no unwanted contact, no stalking, no harassment, only First Amendment protected speech to the public about a limited public figure on public issues.
Textbook freedom of speech and textbook abuse of our legal system.
https://reason.com/assets/db/15157121468221.pdf
[ link to this | view in chronology ]
Re: Rynearson did not stalk Moriwaki
"RCW 9.61.260 Cyberstalking. (1) A person is guilty of 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:
(b) Anonymously or repeatedly whether or not conversation occurs;"
Rynearson harassed Moriwaki repeatedly by electronic communication to a third party (Facebook visitors). The court's ruling was pretty narrow, focusing on Moriwaki's involvement with the memorial and not the (libelous?) remarks addressed at Moriwaki himself and deliberately misstating Moriwaki's views.
There are some interesting First Amendment issues here, but Rynearson is making his points in such toxic ways that push the boundaries of free speech. He searches social media for comments from people who disagree with him, cuts and pastes them out of context, and makes stuff up to fill in the blanks. Then he posts what he has created again and again. Is this the kind of free speech that you defend?
The proper venue for this is Facebook, Twitter, and other social media for them to actually enforce their user agreements and posting policies. Too bad they don't so it falls to the court.
[ link to this | view in chronology ]
Re: Re: Rynearson did not stalk Moriwaki
It seems odd that there would be this horrible speech you refer to that Moriwaki would not supply to the court when he dragged the other guy into legal proceedings. If a view was misstated, you have speech to clarify or correct or expose it. Not have him arrested. Pretty simple stuff. Or if it's defamatory there are civil remedies. The courts found, however, that there was no defamation.
Either way, it's not harassment when somebody posts something to the public that somebody else doesn't like. That's just the way it works and anybody with any appreciation for free speech at all should know that.
I am amazed how you think this case involves pushing the "boundaries of free speech" because it does nothing of the sort, but I hope your desire for courts to force media sites to remove views you don't like continues to disappoint you.
There is a reason Moriwaki lost in court and it's not even a close call as to why. Welcome to America.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Moriwaki is neither a politician nor elected official. He is the chair of the committee that worked towards establishing a local memorial to the Japanese residents of Bainbridge Island that were forced to leave their home for internment camps at the start of World War II.
As has been reported, Rynearson was not happy that Moriwaki was not publicly critical of US policies that allow for indefinite detention of US citizens and criticized him at every opportunity to the point that Moriwaki felt that it was harassment.
I don't know enough of the facts in this case to know what actually happened. That is for the courts to decide. I do know Moriwaki and, given the response that I have received on other issues from Rynearson's local supporters, I would not be surprised if Moriwaki was being harassed. My response has been to contact Twitter and Facebook and point out that their Terms of Service are being violated. Given how well that worked, I am not surprised to see Moriwaki using cyberbullying laws.
[ link to this | view in chronology ]
The courts have spoken, Rynearson stalked nobody
The court said Rynearson's speech and conduct was not obscene, was protected by the First Amendment and that Rynearson did not stalk or harass Moriwaki.
https://reason.com/assets/db/15157121468221.pdf
[ link to this | view in chronology ]