(Volokh.com) Yes, the Renton (Wash.) city prosecutor’s office concludes, applying the Washington “cyberstalking” statute — an excellent example of the dangers of the broad “cyberbullying” and “harassment” statutes that I have often condemned. KIRO-TV reports:
The Renton City Prosecutor wants to send a cartoonist to jail for mocking the police department in a series of animated Internet videos.
The “South-Park”-style animations parody everything from officers having sex on duty to certain personnel getting promoted without necessary qualifications…. [Last week, the prosecutor filed] a search warrant accusing an anonymous cartoon creator, going by the name of Mr. Fiddlesticks, of cyberstalking (RCW 9.61.260). The Renton Police Department and the local prosecutor got a judge to sign off as a way to uncover the name of whoever is behind the parodies….
The series of web-based short cartoons feature a mustachioed street cop and a short-haired female bureaucrat. The dry, at times, witty banter between the two touches on some embarrassing insider secrets, some of which seem to match up with internal affairs investigations on file within Renton PD.
Cartoon Character of Officer: “Is there any reason why an anonymous video, with no identifying information that ties it to the department or city is being taken more seriously than officers having sex on duty, arguing with outside agencies while in a drunken stupor off duty, sleeping while on duty, throwing someone off a bridge, and having inappropriate relationships with coworkers and committing adultery?”
Cartoon Character of Bureaucrat: “The reason is that internal dirt is internal. The department will crucify certain people and take care of others.”
A criminal court document, uncovered by Team 7 Investigators, not only shows how badly the city of Renton wants to “out” the cartoonist (who goes by the name MrFiddlesticks), but states some of the fake character’s lines discuss real life incidents….
Here’s the potentially relevant text from Rev. Code Wash. 9.61.260:
A person is guilty of cyberstalking if he or she, with intent to harass, intimidate, torment, or embarrass any other person, and under circumstances not constituting telephone harassment, makes an electronic communication [defined as transmission of information by wire, radio, optical cable, electromagnetic, or other similar means … includ[ing] … internet-based communications] to such other person or a third party: (a) Using any lewd, lascivious, indecent, or obscene words, images, or language, or suggesting the commission of any lewd or lascivious act ….
Under the prosecutor’s view, any statement — including on a blog, in a YouTube video, in a newspaper article, on television, or whatever else — is a crime if it is made “with intent to harass, … torment, or embarrass” the subject of the person “[u]sing any lewd, lascivious, indecent, or obscene words, images, or language.” A comedian’s joke that “lewd[ly]” or “lascivious[ly]” described President Clinton’s behavior with Monica Lewinsky, or for that matter Congressman Weiner’s behavior, would be a crime if it was made “with intent to … embarrass” the President or the Congressman. The Hustler parody attacking Jerry Falwell, which the Supreme Court held to be protected against civil liability under the “intentional infliction of emotional distress tort,” would be a crime. Indeed, in this very case, the theory is that the videos are criminal because they described alleged police sexual misconduct using “lewd” or “indecent” words with the intent to torment or embarrass particular officers. (The theory expressed in the document — a search warrant application — is that the videos sufficiently identify the particular police officers who were involved in the incidents to which the video alludes.)
If the prosecutor is right that the statute should be interpreted this broadly, then it’s clearly unconstitutionally overbroad. Speech to the public doesn’t lose its constitutional protection because it’s intended to torment or embarrass. (It may lose such protection when it’s intended to be perceived as a true threat of criminal attack, but that’s not the issue here.) Nor does lose its constitutional protection because it uses “lewd” or “indecent” terms. And while one-to-one speech said to an unwilling listener may in some circumstances be restricted — which is the reason traditional telephone harassment laws, if properly crafted, may be constitutional — this rationale can’t be used to suppress speech said to the public, even if the people discussed in the speech are tormented or embarrassed by it.
Moreover, the statute would be clearly unconstitutional as applied to this video, and the prosecutor and the judge ought to know this. (The prosecutor is Renton Chief Prosecutor Shawn Arthur; the judge is James Cayce.) A search warrant can only be issued if there is probable cause to believe that it will uncover evidence of a crime; since the material described in the affidavit can’t be made criminal under the cited statute, given the First Amendment, the warrant ought not have been issued. The government is not permitted to use its coercive power to identify the author of this constitutionally protected video.
Thanks to Cory Andrews for the pointer. UPDATE: I originally said I didn’t know which judge signed this warrant, but that was a mistake on my part — Judge Cayce’s signature is right there on the last page.