A Washington federal judge has ruled that the state’s law prohibiting cyberstalking is facially unconstitutional under the First Amendment to the United States Constitution, as made applicable to the states through the Fourteenth Amendment. In 2004, Washington enacted one of the first state statutes directly criminalizing cyberstalking. The provision challenged in the litigation provides that a “person is guilty of cyberstalking if he or she, with intent to harass, intimidate, torment, or embarrass any other person . . . makes an electronic communication to such other person or a third party . . . makes an electronic communication to such other person or a third party . . . anonymously or repeatedly whether or not conversation occurs.”
The lawsuit was filed by a retired Air Force major, Richard Rynearson III, an online author and activist who regularly posts comments related to civil liberties that are critical of police abuse and expansions of executive power since the September 11 terrorist attacks. Much of his online commentary relates to a detention provision in the National Defense Authorization Act (NDAA), and he became interested in public and civic organizations in the Seattle area that memorialize or seek to present the lessons of the Japanese-American internment during World War II. Rynerason regularly posts comments on Facebook pages critical of civic leaders and organizations that fail to condemn the NDAA or detention issues. He posted numerous criticisms on his neighbor’s Facebook page and later created a group using his neighbor’s name. Rynearson’s activities made him the subject of police reports and civil protection orders.
Rynearson filed suit contending that the Washington statute criminalizes plainly protected speech under the First Amendment. The Washington Federal District Court found that the statute’s breadth included protected speech and criminalizes a large range of non-obscene, non-threatening speech, based only on purported bad intent and repetition or anonymity. Particularly, the United States 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. As the court has held, this is because “in public debate our own citizens must tolerate insulting, or even outrageous, speech in order to provide ‘adequate breathing space’ to the freedoms protected by the First Amendment.” The Washington cyberstalking law’s prohibitions against speech that is intended to “harass, intimidate, torment, or embarrass” were too vague to withstand constitutional scrutiny.