Washington State 'Cyberstalking' Case Based on Unconstitutional Law

Electronic Frontier Foundation Statute Criminalizes Speech in Violation of the First Amendment

Electronic Frontier Foundation Media Release
For Immediate Release: Wednesday, July 25, 2012

Washington State ‘Cyberstalking’ Case Based on
Unconstitutional Law

Hanni Fakhoury
Staff Attorney
Electronic Frontier Foundation
+1 415 436-9333 x117

Statute Criminalizes Speech in Violation of the First

San Francisco – The Electronic Frontier Foundation (EFF) is
urging a Washington State judge to dismiss “cyberstalking”
charges stemming from rude comments left on a blog.  In an
amicus brief filed today, EFF argues that the case is based
on an unconstitutional law that criminalizes free speech.
The defendant in the case, Brandy Edwards, created an
online dating profile under a pseudonym and used it to
communicate with Amanda Westmont, the ex-wife of a friend
of Edwards.  Months later – after the online relationship
ended – Edwards posted three critical comments on
Westmont’s publicly accessible blog, still using the
pseudonym.  Employing obscenities, the posts referred to
Westmont as “full of herself,” a “nutcase,” and a
Westmont deleted the posts and reported them to the police.
A year later, Edwards was charged with two counts of
“cyberstalking” under Washington State law.  The first
charge is based on Edwards anonymously and repeatedly
communicating with Westmont for the purpose of “harassing
and embarrassing” another person, although the conversation
was consensual.  The second charge is based on Edwards’ use
of “obscene” language for the purpose of “harassing or
embarrassing.”  The problem with the Washington State
statute is that it outlaws anonymous or obscene speech
intended to “embarrass” without defining what that broad
term means.  In the brief filed today, EFF argues that the
law is unconstitutional and the case should be dismissed.
“While we may not like a lot of what people say online, the
First Amendment allows for rudeness and other impolitic
comments,” said EFF Staff Attorney Hanni Fakhoury.  “The
way this law is written, it could end up criminalizing
things like posting a negative review on a website like
Venkat Balasubramani of FOCAL PLLC in Seattle, Washington,
is EFF’s local counsel in the case.
For the full amicus brief:
For this release:
About EFF
The Electronic Frontier Foundation is the leading
organization protecting civil liberties in the digital
world. Founded in 1990, we defend free speech online, fight
illegal surveillance, promote the rights of digital
innovators, and work to ensure that the rights and freedoms
we enjoy are enhanced, rather than eroded, as our use of
technology grows. EFF is a member-supported organization.
Find out more at https://www.eff.org.

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