About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

93 Wash. L. Rev. 1563 (2018)
Threading the First Amendment Needle: Anonymous Speech, Online Harassment, and Washington's Cyberstalking Statute

handle is hein.journals/washlr93 and id is 1585 raw text is: THREADING THE FIRST AMENDMENT NEEDLE: ANONYMOUS SPEECH, ONLINE HARASSMENT, AND WASHINGTON'S CYBERSTALKING STATUTE Sarah E. Smith* 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(l)(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. INTRODUCTION Imagine receiving constant unsettling messages via Twitter or Facebook: an ex-boyfriend threatens to post intimate photographs unless you agree to get back together.2 Imagine an acquaintance that bombards * J.D. Candidate, 2019, University of Washington School of Law. I would like to thank Professor Bob Gomulkiewicz for his insightful edits, comments, and mentorship throughout the drafting process. I would also like to thank the stellar editors at Washington Law Review. This piece would not be where it is without their efforts. As a matter of disclosure, I have previously interned with the Electronic Frontier Foundation, a technology and civil liberties impact litigation organization, and Legal Voice, a women's and LGBTQ rights impact litigation organization. All errors are my own. 1. No. 17-2-01463-1, 2018 WL 733811 (Wash. Super. Ct. Jan. 10, 2018). 2. See, e.g., DANIELLE KEATS CITRON, HATE CRIMES IN CYBERSPACE 204 (2014) (detailing the experiences of a woman whose ex-boyfriend sent her family, coworkers, and business associates postcards featuring images of the woman in lingerie and links to websites that featured nude 1563

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most