Rynearson v. Ferguson

• Decision Date: 22 February 2019
• Docket Number: CASE NO. C17-5531RBL
• Parties: Richard L. RYNEARSON, III, Plaintiff, v. Robert FERGUSON, Attorney General of the State of Washington, and Tina R. Robinson, Prosecuting Attorney for Kitsap County, Defendant.
• Court: U.S. District Court — Western District of Washington

355 F.Supp.3d 964

Richard L. RYNEARSON, III, Plaintiff,

v.Robert FERGUSON, Attorney General of the State of Washington, and Tina R. Robinson, Prosecuting Attorney for Kitsap County, Defendant.

CASE NO. C17-5531RBL

United States District Court, W.D. Washington, at Tacoma.

Signed February 22, 2019

Garrett Heilman, Venkat Balasubramani, Focal PLLC, Seattle, WA, Eugene Volokh, Pro Hac Vice, UCLA School of Law, Los Angeles, CA, for Plaintiff.

Darwin P. Roberts, Goldfarb & Huck Roth Riojas, PLLC, Seattle, WA, Callie A. Castillo, Washington State Attorney General's Office, Jeffrey T. Even, Attorney General's Office, Megan Lin, Olympia, WA, Christine M. Palmer, Ione S. George, Port Orchard, WA, for Defendant.

ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION

Ronald B. Leighton, United States District Judge

THIS MATTER is before the Court on Plaintiff Rynearson's Renewed Motion for a Preliminary Injunction¹ [Dkt. # 44]. Rynearson seeks a declaration that RCW 9.61.260(1)(b) is unconstitutional under the First Amendment to the United States Constitution, as made applicable to the States through the Fourteenth Amendment. In this motion, Rynearson asks this Court to declare 9.61.260(1)(b) facially overbroad and to enjoin the defendants from enforcing this particular section as against him.

Rynearson first filed this motion for a preliminary injunction in July 2017. The Court dismissed the suit on abstention grounds under Younger v. Harris , 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) in light of a then-pending civil protection order case in state court. In an expedited appeal, the Ninth Circuit reversed and remanded the case. Rynearson v. Ferguson , 903 F.3d 920 (9th Cir. 2018). In the intervening months between the District Court decision and the Ninth Circuit's order, the Kitsap County Superior Court dismissed the stalking protective order because the communication and the conduct in this case falls under the umbrella of constitutionally protected speech. No. 17-2-01463-1, 2018 WL 733811 (Wash. Super. Co., Jan. 10, 2018).

For this renewed motion, the Court has received and reviewed the memoranda from Rynearson [Dkt. # 44 and # 55], the memoranda from the defendants including a Motion to Dismiss [Dkt. # 53 and # 56], the Complaint [Dkt. # 1], Brief of Amici Curiae Electronic Frontier Foundation and American Civil Liberties Union of Washington in Support of Plaintiff's Motion for Preliminary Injunction [Dkt. # 52], and Defendants' Response to Amici Curiae Electronic Frontier Foundation and American Civil Liberties Union of Washington [Dkt. # 54]. The Court also conducted oral argument on the issues central to this dispute. For the following reasons, the Preliminary Injunction requested by Rynearson and Amici Curiae is GRANTED .

I. FACTS

Rynearson is an online author and activist who regularly writes online posts and comments to the public related to civil liberties, including about police abuse and the expansion of executive power in the wake of September 11. Rynearson's writings are often critical—and sometimes harshly so—of local public figures and government officials. These writings are well within the traditions of independent American political discourse, and are intended both to raise the awareness of other citizens regarding the civil-liberties issues that Rynearson writes about, and to hold civic and political leaders accountable to the community through pointed criticism. This sort of expression is at the very heart of political speech which the First Amendment most strongly protects.

Many of Rynearson's online posts and comments relate to a detention provision in the National Defense Authorization Act ("NDAA") of 2012. Specifically, Section 1021, which was found for authorizing the (unconstitutional) detention of American citizens without trial under the laws of war. See Hedges v. Obama , 890 F.Supp.2d 424, 458 (S.D.N.Y. 2012), rev'd for lack of jurisdiction , 724 F.3d 170 (2d Cir. 2013). Given his interest in indefinite-detention issues, Rynearson became interested years ago in public and civic organizations in the Seattle area that memorialize and seek to present the lessons of the Japanese-American internment in World War II, such as the Bainbridge Island Japanese-American Exclusion Memorial and Seattle-based Densho.

In the past, Rynearson has regularly posted on public Facebook pages criticizing the leadership of public and civic organizations, either because their leaders failed to condemn the NDAA or because they vocally and strongly support politicians who voted for or signed the NDAA, such as Governor Jay Inslee and former President Barack Obama. For example, in February 2017, Rynearson wrote a series of public posts on Facebook criticizing Clarence Moriwaki, the founder of the Bainbridge Island Japanese-American Exclusion Memorial ("Memorial"), for failing to criticize Governor Inslee and President Obama for voting for/signing the NDAA. The thrust of Rynearson's posts was that Moriwaki should be removed from his role as board member and de facto spokesperson for the Memorial because Moriwaki used the lessons of the internment, and his role with the Memorial, to criticize Republican politicians (chiefly, President Trump) in many media articles or appearances related to the Memorial, but failed to criticize Democratic politicians.

Rynearson's posts often include invective, ridicule, and harsh language (but no profanity, obscenity, or threats) intended to criticize or call into question the actions and motives of these civic leaders and other public figures. He reasonably fears prosecution under the cyberstalking statute for such posts. In fact, the Bainbridge Island Police Department referred a police report to the Kitsap County Prosecutor finding probable cause for cyberstalking based on such critical posts to and about Moriwaki. The prosecutor has not brought charges, but sent an email stating that she would revisit her decision regarding charges based on Rynearson's future behavior, including his future speech.

For a period of time, from March 2017 to January 2018, Rynearson was also subject to a civil protection order imposed by the Bainbridge Island Municipal Court based on posts critical of Moriwaki. Moriwaki v. Rynearson , No. 17-2-01463-1, 2018 WL 733811, at *12 (Wash. Sup. Ct. Jan. 10, 2018). The cyberstalking statute was one of the statutes invoked by the Municipal Court in imposing the protection order. Moriwaki , 2018 WL 733811, at *5. The order imposed sharp limits on Rynearson's speech, such as barring the use of Moriwaki's name in the titles or domain names of webpages. The order has now been vacated on the ground that it was impermissibly based on Rynearson's constitutionally-protected speech. Moriwaki , 2018 WL 733811, at *12.

II. ISSUES

A. In Light of Rynearson's Exoneration by the State Court of Violating the Cyberstalking Statute, Does He Have Standing to Challenge Washington's Law?

B. Is the Cyberstalking Statute Overbroad and Unconstitutional Ruiring Injunctive Relief?

III. DECISION

A. Rynearson Has Standing to Challenge Washington's Cyberstalking Statute.

On January 10, 2018 the Kitsap County Superior Court Reversed and Vacated the Municipal Court's decision to grant the stalking protection order and remanded the matter back to the Municipal Court for entry of an order of dismissal. Despite the order exonerating Rynearson in the State Court, he nevertheless filed this renewed motion for Preliminary Injunction. The defendants in this matter argue that Rynearson lacks standing to challenge Washington's Cyberstalking Statute. They point out that the U.S. Constitution limits the judicial power of federal courts to "cases" and "controversies." Flast v. Cohen , 392 U.S. 83, 94, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). "Standing to bring a claim is a controlling element in the definition of a case or controversy." Alaska Right to Life Political Action Comm. v. Feldman , 504 F.3d 840, 848 (9th Cir. 2007). "Standing requires proof (1) that the plaintiff suffered an injury in fact that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical;’ (2) of a causal connection between that injury and the complained-of conduct; and (3) that a favorable decision will likely redress the alleged injury." Id. (quoting Lujan v. Defs. Of Wildlife , 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ). The plaintiff must establish a "personal stake in the outcome" so as to assure "concrete adverseness" in the controversy. Baker v. Carr , 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).

The Supreme Court has adopted a "relaxed approach" to standing when First Amendment overbreadth is asserted, but it has done so only upon a showing that the plaintiff is "immediately in danger of sustaining a direct injury as a result of an [executive or legislative] action." Alaska Right to Life , 504 F.3d at 851. When the plaintiff challenges the constitutionality of a statute because it may "unconstitutionally chill" the First Amendment rights of others, the plaintiff must still satisfy the "rigid constitutional requirement" of having a personal, credible injury or threat of injury from the challenged statute. Lopez v. Candaele , 630 F.3d 775, 785 (9th Cir. 2010).

Rynearson argues that he can meet the necessary requirements of standing because (1) he is suffering "the constitutionally recognized injury of self-censorship," Cal. Pro-Life Council, Inc. v. Getman , 328 F.3d 1088, 1095 (9th Cir. 2003), (2) his intended speech arguably falls within the Statute's reach, which established a "well-founded fear that the law will be enforced," Id. , and (3) enjoining the local prosecution and the Attorney General would redress his injury. If the plaintiff's intended speech arguably falls within the Statute's reach, then a well-founded "fear of prosecution will ... inure." Cal. Pro-Life Council , 328 F.3d at 1095.

For the reasons given in the following section, Rynearson's intended speech at least...