Federal judge blocks Washington state cyberstalking law

By Gene Johnson / Associated Press

SEATTLE — A federal judge blocked Washington state’s cyberstalking law Friday, saying it clearly prohibits speech that is protected by the First Amendment.

U.S. District Judge Ronald Leighton in Tacoma issued a preliminary injunction in a case brought by a Bainbridge Island man who frequently makes online posts designed to criticize or embarrass — but not threaten — others. Leighton said Washington’s 2004 law appears to violate the Constitution because it bans not just threats, but “a large range of non-obscene, non-threatening speech.”

“As a result even public criticisms of public figures and public officials could be subject to criminal prosecution and punishment,” Leighton wrote.

Richard L. Rynearson III, a retired Air Force major, sued to overturn the law in 2017, saying he had been threatened with prosecution by Kitsap County for writing posts that criticized a local activist.

Washington’s law was one of the first cyberstalking laws in the country. It makes it a crime punishable by up to a year in jail to send electronic communications with the intent to “harass, intimidate, torment, or embarrass any other person,” either using lewd language or to do so “anonymously or repeatedly.”

The state argued that the law was constitutional because it was designed to target conduct — harassment — rather than speech, and that any constitutionally protected speech would not fall within its grasp. Further, the Attorney General’s Office said, Rynearson had not shown a serious threat of being prosecuted.

The Bainbridge Island Police Department referred a police report to the Kitsap County Prosecutor’s Office finding probable cause for a cyberstalking charge, but the prosecutor did not file charges, instead saying the office would wait to see how Rynearson behaved in the future.

And while the activist obtained a restraining order against him in a city court, a Kitsap County judge dismissed it, saying Rynearson’s posts were protected by the First Amendment.

As for speculation that someone might be prosecuted for writing a blog post designed to embarrass a public official, the state said, it was just that — speculation.

“Rynearson does not — nor can he — point to a single case where the statute has been construed to criminalize his posited hypotheticals,” the Attorney General’s Office wrote in one court filing.

Rynearson’s attorney, Eugene Volokh, a University of California-Los Angeles law professor, also challenged a similar law in Ohio recently. Federal courts found that his clients did not have standing.

In recent cases in Illinois and Michigan, he noted, state appeals courts had struck down anti-stalking or -harassment orders against people who wrote similarly offensive but not threatening posts online.

Rynearson’s communications, including Facebook posts and text messages, concerned one of his neighbors, Clarence Moriwaki, who founded a memorial on Bainbridge Island to memorialize the internment of Japanese Americans during World War II.

Rynearson 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, he alleged, Moriwaki hadn’t done so.