A federal lawsuit naming Washington Attorney General Bob Ferguson argues a state law against cyberstalking violates free speech rights.
A Bainbridge Island man attempting to overturn Washington’s cyberstalking law will get another shot to make his case.
A three-judge panel of the 9th Circuit Court of Appeals has overturned a lower court decision that dismissed a challenge by retired Air Force Maj. Richard Lee Rynearson III of the constitutionality of the state’s cyberstalking law. The unanimous panel, in a published opinion, reinstated a lawsuit that had been dismissed by U.S. District Judge Ronald Leighton in Tacoma and sent the case back to him for further proceedings.
Rynearson faced allegations of online harassment against a neighbor and fellow community activist, Clarence Moriwaki, who sought and obtained a protection order against Rynearson’s online activities. In the meantime, Rynearson sued to challenge the constitutionality of the law, and Leighton dismissed it based on case law that says federal courts should abstain from intervening in state cases while proceedings are ongoing in state court. The panel disagreed, finding Rynearson’s lawsuit did not fit into that narrow exclusion.
His lawsuit alleges the statute is overbroad and violates the First Amendment. It names Washington State Attorney General Bob Ferguson and Kitsap County Prosecutor Tina Robinson as defendants.
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Rynearson’s case will now return to the U.S. District Court.
Eugene Volokh, who represents Rynearson and teaches law at the University of California, Los Angeles, characterized the rulings so far as a procedural “detour” from the First Amendment question at hand.
Under state law, cyberstalking includes anonymous, repeated or obscene electronic communications sent “with intent to harass, intimidate, torment, or embarrass any other person.” Rynearson’s lawsuit alleges the law violates free-speech rights under the First Amendment.
Volokh said that while laws against threatening speech may be legal, terms like “harass,” “torment” and especially “embarrass” are too broad and could be exploited by prosecutors.
“Your freedom to speak shouldn’t turn on a prosecutor’s judgments about whether your intentions were pure,” Volokh said.
In a statement, Ferguson defended the law as an effort “to protect Washingtonians from harassment online.”
“As Attorney General, my job is to defend laws passed by the Legislature,” Ferguson said. “This ruling sends the case back to the trial court. We will continue to defend the law.”
Rynearson’s opposition to the cyberstalking law stems from a monthslong Facebook skirmish that resulted in a protection order against Rynearson.
In January 2017, Rynearson began frequently commenting on the Facebook page of Moriwaki, the founder of the Bainbridge Island Japanese-American Exclusion Memorial, designed to memorialize the first Japanese-American Internment Center. Rynearson, who served 20 years in the Air Force and retired as a major, has been a frequent and vocal critic of the 2012 National Defense Authorization Act (NDAA) and its detention provisions, according to court documents. He has argued that activists who speak out against internment should strongly condemn NDAA and criticized Moriwaki for not doing so. Rynearson also texted Moriwaki, and the two lived near each other.
Moriwaki told Rynearson he was “trolling” and eventually blocked him on Facebook, according to court documents. Rynearson then created a Facebook page where he posted memes criticizing Moriwaki. Moriwaki successfully obtained temporary and permanent protection orders against Rynearson in municipal court.
However, Rynearson later prevailed when a Superior Court judge overturned a protection order. Kitsap County Superior Court Judge Kevin Hull found Rynearson’s behavior fell “under the umbrella of constitutionally protected speech.” Hull vacated the protection order, but did not rule on the constitutionality of the cyberstalking law.
An earlier version of this story misidentified U.S. District Judge Ronald Leighton.