Washington Law Review

Comment

Threading the First Amendment Needle: Anonymous Speech, Online Harassment, and Washington’s Cyberstalking Statute

October 01, 2018 | 93 Wash. L. Rev. 1563

Abstract:  This Comment examines the constitutionality of Washington’s cyberstalking
statute, RCW 9.61.260, and its treatment of anonymous online speech. While the statute was
drafted to ensure that women are free from domestic and gender-based violence, the statute
as currently written and enforced infringes on the constitutionally protected right to free
speech. There has only been one action, Moriwaki v. Rynearson, enforcing the provision of the statute related to anonymous speech. The court ultimately overturned the stalking protection order, which the plaintiff brought to halt political speech, on First Amendment grounds. While the Moriwaki court concluded that the stalking protection order there was an unconstitutional application of the law, RCW 9.61.260 is likely facially invalid under the First Amendment and incapable of withstanding strict scrutiny analysis. Faced with these issues, Washington has several options. Washington courts could narrowly construct RCW 9.61.260(1)(b). In so doing, courts could differentiate between anonymous speech that is ordinarily protected by the First Amendment and speech that is unprotected. The courts could also overturn the entire statute as unconstitutional on First Amendment grounds. This Comment argues that the legislature should return to the drawing board and redraft RCW 9.61.260 so that it can pass muster under the First Amendment. This Comment also proposes model legislation on which the Washington legislature could base a new law. Regardless of what Washington decides to do, the importance of preventing violence against women and preserving free speech online are too great to sacrifice to sloppy legislative drafting.

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