SEATTLE — Washington’s law against cyberstalking faces a dubious future after the state Attorney General’s Office took a pass on defending its constitutionality during a federal court hearing Friday.

Lawyers for a retired Air Force major asked U.S. District Judge Ronald Leighton to block the state from enforcing the law, saying their client has been threatened with prosecution for making online posts that criticize — but don’t threaten — a community activist on Bainbridge Island.

Eugene Volokh, a University of California-Los Angeles law professor, said the law criminalizes online speech intended to harass, torment or embarrass someone else — restrictions that clearly cover speech protected by the First Amendment to the U.S. Constitution.

“We think that cannot be constitutional,” he told the judge. “If you think of much of what goes on in elections, President Trump might have been guilty of cyberstalking Secretary Clinton.”

The case concerns Bainbridge Island resident Richard L. Rynearson III. Rynearson 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. 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 that Moriwaki hasn’t done so.

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 in that matter the office might file charges if his behavior continued, but he has not been charged. A municipal court judge granted Moriwaki a restraining order, rejecting Rynearson’s free-speech arguments.

The Washington Attorney General’s Office has said the federal court should not intervene in the matter, which can be decided by the state courts instead, and that Rynearson can’t get an injunction against the Attorney General’s Office because the office itself generally doesn’t handle criminal prosecutions. Kitsap County’s prosecutor is also named as a defendant.

During Friday’s hearing, Leighton took note of the state’s silence on the law’s legality, and he invited Deputy Attorney General Darwin Roberts to address it.

“You can see the state has questions about the overbreadth of the statute,” the judge said.

Roberts demurred, noting only that some defendants in isolated state cases had successfully challenged their prosecutions under the law.

Given the state’s refusal to debate the merits of the law, rather than just the court’s jurisdiction, Leighton wondered aloud why “we got everybody up and dressed for this.”

“It’s a difficult position to be in, in a case in a federal court, to seem like poaching in a state proceeding,” the judge said. “There’s good reason why state courts should have first crack at their statute. But federal courts are the keepers of the U.S. Constitution, and we take that very seriously.”

The problem with the state’s law is that lawmakers, when they unanimously approved it in 2004, essentially cut-and-pasted language from the state’s telephone harassment statute. But telephone harassment statutes, which have largely been upheld by courts around the country, criminalize person-to-person harassment done by phone. The cyberstalking law criminalizes content published to a broader audience, thus more seriously implicating free-speech rights.

“If somebody calls me up on the phone and says, ‘Professor Volokh, you’re an idiot and you shouldn’t be on the faculty at UCLA,’ there’s not much First Amendment value there,” Volokh said after the hearing. “But if they post online and say, ‘Professor Volokh is an idiot and shouldn’t be on the faculty at UCLA,’ that’s now speech to the public.”

Neither Rynearson nor Moriwaki attended the hearing. Leighton said he planned to rule within two weeks.


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