A retired Air Force major filed the lawsuit against Washington Attorney General Bob Ferguson and Kitsap County Prosecutor Tina Robinson in U.S. District Court on Tuesday.
A retired Air Force major is asking a federal court to declare Washington state’s cyberstalking law unconstitutional, saying he’s been threatened with prosecution — and up to a year in jail — for repeatedly making online posts that criticize a community activist.
Richard Lee Rynearson III filed the lawsuit against Washington Attorney General Bob Ferguson and Kitsap County Prosecutor Tina Robinson in U.S. District Court on Tuesday. It’s within his free-speech rights to publish such criticism, he said.
One of his attorneys is Eugene Volokh, a University of California, Los Angeles, law professor who in May challenged a similar law in Ohio.
“How can it possibly be constitutional to ban mean speech online?” Volokh said. “If someone is appalled by a local official and wants to embarrass them by posting things online, that’s a crime?”
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Rynearson, of Bainbridge Island, has repeatedly written posts that criticize — but don’t threaten — Clarence Moriwaki, who founded a memorial there to the internment of Japanese-Americans during World War II. 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 that the office might file charges if his behavior continued, but he has not been charged.
“He just won’t leave me alone,” Moriwaki said Wednesday. “I told him to stop posting about me, to stop contacting me, and he won’t. He’s a classic cyber bully.”
Washington’s cyberstalking law, passed in 2004, makes it illegal to send electronic communications repeatedly or anonymously with an intent to “harass, intimidate, torment, or embarrass” someone — whether the message is sent directly to the target or to someone else.
Representatives of the Washington Attorney General’s Office and the Kitsap County Prosecutor’s Office declined to comment.
Supporters of such laws say they’re needed to cut down on cyber bullying, but critics say the measures criminalize common online behavior, not to mention speech protected by the Constitution. Similar online harassment laws have been struck down in years past by state courts in New York and North Carolina, Volokh noted.
Rynearson wrote in a declaration filed in court that Moriwaki and the Bainbridge Island Japanese-American Exclusion Memorial had done good work to preserve the history of internment as a reminder for present-day debates about civil liberties in wartime.
But, he said, he eventually became disillusioned that Moriwaki had not criticized Democratic politicians who supported the 2012 National Defense Authorization Act. That law had been interpreted as allowing for the indefinite detention of U.S. citizens in the fight against terrorism.
He repeatedly posted that criticism on Facebook pages maintained by Moriwaki and by others, in text messages to him, and even on a Facebook page he initially titled “Clarence Moriwaki of Bainbridge Island,” in which he wrote that Moriwaki “is unfit to be the President or board member for our memorial.” Some of the posts were made under the pseudonym Richard Lee.
He took the page down and has ceased criticizing Moriwaki in response to the temporary restraining order, he said in his declaration, but he would like to resume the online criticism.