Online harassment is a serious problem.  As we’ve repeatedly explained in the past, laws that address it must be carefully written to protect people from the real harms caused by online harassment, without unduly restricting free speech or invading people’s privacy.

Unfortunately, Washington state enacted a criminal cyber-stalking statute that threatens its citizens with prosecution and incarceration for innocent online speech protected by the First Amendment.  Specifically, the law prohibits broadly-defined “electronic communications” intended to “embarrass” someone (or torment, harass or intimidate them) that are made anonymously or repeatedly or include a four-letter word (or is threatening or obscene).

This law criminalizes a wide range of Internet communications that enjoy the fullest protection of the First Amendment. Here’s a few examples of protected speech that would run afoul of the law:

• A newspaper might publish on its website two editorials arguing that an elected official should be embarrassed because of their misconduct.
• A government reform activist might publish on YouTube a video recording of government malfeasance, and then send a text message to the wrongdoer’s boss that identifies the post and uses a four-letter word, to embarrass the wrongdoer and the boss, and thus encourage reform.
• An election challenger might twice publish on their website lists of the incumbent’s controversial votes, to embarrass their opponent into withdrawing from the race.
• A former member of a religious congregation, after reading a digital news article about it, might anonymously post in the article’s public comment section a criticism of the congregation’s liturgy, to embarrass the spiritual leader into changing the liturgy.
• A restaurant customer might anonymously publish on Yelp a negative review, hoping embarrassment will spur the owner to improve the restaurant.

EFF actively opposes such overbroad anti-harassment laws that criminalize protected free speech on the Internet. We filed amicus briefs asking courts to strike down such overbroad laws in 2011 and 2012.  The power of courts to overturn flawed laws on their face is a critical protection of our constitutional rights to free speech and privacy, as we have explained.

EFF recently filed an amicus brief in the Washington case State v. Boyajian, asking a court to strike down the state’s cyber-stalking statute. While the trial judge declined to accept our brief, we will continue to monitor the case and advocate wherever we can against this overbroad statute. 

When government enacts criminal laws against harassment on the Internet, it must carefully tailor those laws to steer clear of speech that is protected by the First Amendment.  Washington has failed to do so.

Venkat Balasubramani of FOCAL PLLC in Seattle, Washington, is EFF’s local counsel in this case.