9th Circuit reinstates First Amendment challenge to cyberstalking law
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A federal appeals court has allowed an activist to pursue his First Amendment challenge to Washington state’s cyberstalking law.
The San Francisco-based 9th U.S. Circuit Court of Appeals said the abstention doctrine does not bar retired Air Force Maj. Richard Lee Rynearson III from pursuing the case, report Courthouse News Service and the Seattle Times.
The abstention issue was a procedural “detour” from questions about the constitutionality of the cyberstalking law, according to one of Rynearson’s lawyers, University of California at Los Angeles law professor Eugene Volokh, who spoke with the Seattle newspaper.
The Washington state statute bans anonymous, repeated or obscene electronic communications sent “with intent to harass, intimidate, torment, or embarrass any other person.”
Volokh said terms like “harass,” “torment” and “embarrass” are too broad, and enforcement of the law could turn on a prosecutor’s judgments about intention. Volokh wrote about the case here and here.
Rynearson, had challenged the cyberstalking law after “a monthslong Facebook skirmish” with a neighbor who founded a memorial to honor exiled Japanese-Americans on Bainbridge Island, according to the Times. Rynearson had maintained that activists who oppose internment should also oppose federal legislation that allows long-term detention of certain terrorism suspects.
The neighbor, Clarence Moriwaki, had obtained a protection order against Rynearson that was later vacated by a Kitsap County judge on First Amendment grounds. Rynearson filed his federal challenge to the cyberstalking law while his state court proceedings were pending. A federal district judge had ruled the challenge was barred by the Younger v. Harris abstention doctrine, which sets out the circumstances when federal courts should refrain from interfering with state court actions.
The 9th Circuit ruled on Sept. 7 that Younger didn’t bar Rynearson’s challenge to the criminal cyberstalking statute because the federal suit would not have stopped the protection order proceedings.
“Although conduct in violation of that statute can be (and was, in Rynearson’s case) a partial basis for issuing a protection order, the criminal statute’s constitutionality does not bear on the validity of the state’s protection orders or the procedures by which the state courts issue or enforce them,” Circuit Judge Richard Clifton wrote for a unanimous panel.
The case is Rynearson v. Ferguson.
Hat tip to How Appealing.
