[1.] A Washington state statute criminalizes (among other things) “mak[ing] an electronic communication to … a third party” “with intent to harass, … torment, or embarrass any other person” if the communication is made “[a]nonymously or repeatedly.”
This deliberately extends beyond unprotected speech (such as true threats or libel). It deliberately extends beyond unwanted speech said to a particular person and forbids embarrassing speech said about that person. Repeatedly criticizing a politician on your blog, for instance, could send you to jail if a prosecutor and judge or jury concludes that you were intending to “harass,” “torment” or “embarrass.”
As I mentioned last July, Venkat Balasubramani and Garrett Heilman (Focal Law LLC) and I filed a federal lawsuit challenging this statute. Our client, Richard Rynearson, actually had a brush with the law as a result of some criticism of a local activist: A police department sent the case to the prosecutor’s office, concluding that there was probable cause for the prosecution, and though the prosecutor has not filed charges, he suggested to Rynearson’s lawyer that he might file charges based on similar conduct in the future.
[2.] But last Fall, our case got derailed by what is called Younger abstention: The federal court abstained from hearing the case because there were state proceedings pending, in this case a state restraining order against Rynearson barring him from saying certain things about the activist. Eventually, that order was reversed on appeal in state court; but when our federal case was filed (the relevant time for Younger purposes), the state order was in place.
Now the classic scenario for Younger abstention is when someone goes into federal court to block his pending prosecution in state court (or, sometimes, pending civil enforcement by the government). The Supreme Court has seen such lawsuits as improperly intruding into state processes, and unduly upsetting the balance of “Our Federalism.”
But here, Rynearson was trying to block any future criminal prosecution, something that Younger generally allows. And the existing state process involved a state civil order issued on behalf of a private individual, not a prosecutor; therefore, we argued, the federal proceeding wouldn’t interfere with the pending state proceeding.
Yesterday, the Ninth Circuit agreed with us (in Rynearson v. Ferguson) that abstention wasn’t justified here:
[W]e consider whether federal courts should abstain from exercising jurisdiction over a constitutional challenge to a state criminal statute while there are ongoing state court protection order proceedings arguably related to the challenge to the criminal statute. In the circumstances of this case, we conclude that abstention is not appropriate….
Younger abstention is a limited exception to the obligation of federal courts to hear cases within the scope of their jurisdiction. We conclude that the Washington state stalking protection order proceedings against Rynearson did not fit into the narrow category of state cases in which federal abstention was appropriate….
You can read the Ninth Circuit’s analysis (which, unsurprisingly, I think is quite right) in the opinion. The case now goes back to federal district court for further proceedings