SEATTLE (CN) – An activist blogger challenging Washington state’s cyberstalking law prohibiting actions that harass, intimidate, torment or embarrass people asked the Ninth Circuit on Wednesday to revive his free speech claims.
Richard Rynearson III, an activist critical of the National Defense Authorization Act, has made numerous online posts criticizing local civic leaders who failed to condemn the act or who support politicians who voted for it.
Rynearson repeatedly posted negative comments on Facebook about Clarence Moriwaki, who founded a local memorial for Japanese-Americans interned during World War II, over Moriwaki’s support for the Obama administration and its reauthorization of the act in 2012. The reauthorization included a provision to allow military detention of American citizens.
Moriwaki obtained a permanent protection order against Rynearson in municipal court and Rynearson appealed to state court. He filed a federal case challenging the constitutionality of the cyberstalking law at the time of the state appeal.
U.S. District Judge Ronald Leighton found Rynearson “raises compelling questions as to the breadth and constitutionality of certain provisions” in the cyberstalking statute but dismissed the case last year. He cited Younger v. Harris, which bars federal court interference in ongoing state court proceedings.
Rynearson argued a decision in his federal case would not affect his state case and appealed to the Ninth Circuit. A panel there Wednesday seemed sympathetic to Rynearson’s claims.
Eugene Volokh, a University of California, Los Angeles, law professor representing Rynearson, urged the panel to revive the case.
Volokh said his client’s challenge of the cyberstalking statute, did not seek to – and could not – enjoin ongoing state proceedings. Rynearson wanted only an injunction against enforcement of the law to prevent future criminal prosecutions.
“Nothing would have enjoined the state proceedings,” Volokh said.
Callie Catillo, with the Washington Attorney General’s Office, countered the federal court’s abstention was proper.
“How would it enjoin state court proceedings,” Ninth Circuit Judge Richard Clifton asked about a hypothetical federal ruling in the case.
“He wanted to use a federal court to protect him,” Catillo said.
“How? How would the order have been affected?” Clifton pressed, referring to Rynearson’s protection order.
Catillo said the cyberstalking was a part of the criminal behavior restrained under the protection order and finding it unconstitutional would remove “one leg of the stool.”
Clifton said he had trouble with her argument and couldn’t understand what would prevent the state from enforcing the protective order.
“Whatever is going on in federal court wouldn’t be a defense for him,” Clifton said.
The panel did not say when it would rule on the case.
Ninth Circuit Judge Jacqueline Nguyen and U.S. District Judge Jed Rakoff, sitting by designation from the Southern District of New York, rounded out the panel.