• Washington State Cyberstalking Law Deemed Unconstitutional
  • March 1, 2019 | Author: Adam R. Durst
  • Law Firm: Goldberg Segalla LLP - New York Office
  • On February 22, a federal judge in the State of Washington held that Washington’s cyberstalking law impermissibly inhibits constitutionally protected speech in violation of the First Amendment.

    The case of Rynearson v. Ferguson was commenced by Richard Rynearson, III against Washington State’s Attorney General and county prosecuting attorney under 42 U.S.C. Section 1983 for the purpose of enjoining the state’s enforcement of its cyberstalking statute, Wash. Rev. Code Section 9.61.260.

    Rynearson is an online author and activist who regularly writes online posts and comments directed to the public related to civil liberties. His writings were often critical of local public figures and government officials. While the court characterized Rynearson’s posts as often including “invective, ridicule, and harsh language[,]” the posts did not include any profanity, obscenity, or threats.

    Many of Rynearson’s posts were critical of laws relating to the indefinite-detention of citizens, including the National Defense Authorization Act (NDAA) of 2012, and more specifically, Section 1021, which was found to authorize the unconstitutional detention of American citizens without trial. In February 2017, Rynearson published a series of posts on Facebook which were critical of Clarence Moriwaki, the founder of the Bainbridge Island Japanese-American Exclusion Memorial (Memorial), for failing to criticize Washington’s Governor and President Barack Obama for voting for/signing the NDAA. Rynearson’s posts called for the removal of Moriwaki from his position with the Memorial.

    From March 2017 to January 2018, Rynearson was subject to a stalking protection order based on his posts critical of Moriwaki, and Washington’s cyberstalking statute (Wash. Rev. Code Section 9.61.260) was one of the statutes invoked for imposing the order. While the protection order was subsequently vacated on appeal on the basis that it was impermissibly based on Rynearson’s constitutionally protected speech, the court found that Rynearson still had standing to enjoin the state from enforcing the statute in the federal court action.

    Wash. Rev. Code Section 9.61.260 provides, in relevant part:

    (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:

    (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.

    Rynearson argued that this statute is overbroad in that it unlawfully criminalizes plainly protected speech under the First Amendment. The court agreed, stating “[s]ection 9.61.260(1)(b)’s breadth—by the plain meaning of its words—includes protected speech that is not exempted from protection by any of the recognized areas” (i.e., obscenity, defamation, fraud, incitement, true threats, and speech integral to criminal conduct). The court observed that the statute would criminalize protected speech based only on “(1) purportedly bad intent and (2) repetition or anonymity,” which is impermissible. The court explicitly stated that “[a]nonymous speech uttered or typed with the intent to embarrass a person as here, is protected speech” (emphasis in original). As a result, the court held that Wash. Rev. Code Section 9.61.260 is facially unconstitutional.

    The court’s decision can be found at Rynearson v. Ferguson, — F. Supp. 3d –, 2019 WL 859226 (W.D. Wash. Feb. 22, 2019).