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UPDATE: Did Renton Police, Prosecutor, Judge Misuse State's Cyberstalking Law?

First Amendment scholars at the University of Washington and Seattle University said the cartoon parodies being investigated by police likely are protected free speech -- not cyberstalking.

Experts in First Amendment law say the Renton police, the city’s prosecutor and a King County Superior Court judge potentially violated the U.S. Constitution’s free speech protections when they used a state cyberstalking law to push an investigation into cartoon videos parodying the police department.

“The First Amendment protects speech–including that which embarrasses public officials,” explained Professor Ronald Collins of the University of Washington School of Law. “(The police) are public officials.”

The animated cartoons, which mock police and administrators and reference specific city personnel issues, were published online by a person identified only as “Mr. Fiddlesticks.” Last month, investigators used the 2004 cyberstalking law to get a search warrant in an attempt to learn Fiddlesticks' identity. 

But granting the search warrant likely stepped beyond what’s legal or likely what the law envisioned, said Collins, a First Amendment scholar. Collins reserved much of his criticism for King County Superior Court Judge James Cayce, who granted the warrant.

“Any judge even marginally sensitive to the First Amendment would have had great pause in granting this search warrant. (Judges) are supposed to be gatekeepers (of the U.S. Constitution).”

Editor's note: Judge Cayce on Tuesday issued a stay of the search warrant. Kirotv.com reported the stay pending a hearing on the matter set for Aug. 19.

Cayce did not return calls or emails seeking comment. City Prosecutor Shawn Arthur, also a target of criticism for seeking the warrant, didn’t respond to interview requests.

Collins said a judge issuing a stay of his or her own search warrent is exceptionally rare. But, he added, this might be good time to do it. "It's not well-grounded."

In all, it’s a difficult time for public officials in Renton. Over the past few weeks, a deputy chief was demoted to sergeant for an undisclosed role in the online videos; another deputy chief faced administrative penalties for using police resources–including a junior officer–to help monitor a girlfriend; and anonymous “Mr. Fiddlesticks” mocked city staff online. 

Renton Police Chief Kevin Milosevich admitted that morale in his department . But he defended as appropriate the use of the Washington cyberstalking law to get a search warrant.

Approved by the Legislature seven years ago, the law states, in part: A person is guilty of cyberstalking if he or she, with intent to harass, intimidate, torment, or embarrass any other person, and under circumstances not constituting telephone harassment, makes an electronic communication to such other person or a third party.”

Milosevich said this was the situation in Renton.

"We ran the facts of this case by our prosecutor and they supported the information that met the definition of a crime and were able to obtain a search warrant based on that information (that was) signed by a judge," he said during a news conference Friday. (Click to watch the video of the news conference, as well as some of the cartoon videos being investigated.)

“Our legal expert reviewed all of the videos and found that it met the requirement of the law." 

If so, the law might be fatally flawed, said First Amendment expert and law professor David Skover. To suggest that “embarrassment” as stated in the Washington law provides enough foundation for  cyberstalking is to “suggest that the First Amendment can be turned on its head.”

Skover, a professor at Seattle University and co-author of books on the First Amendment, said the U.S. Supreme Court, in fact, has held exactly the opposite when it comes to criticizing public officials.

“(The First Amendment) allows us to question and challenge public officials in ways that might embarrass them,” he said.

Among the clearest examples, Skover said, was the 1988 U.S. Supreme Court unanimous decision in favor of Hustler Magazine. In an 8-0 ruling the court held that an off-color, salacious, embarrassing parody of the Rev. Jerry Falwell published by the magazine was protected free speech.

“At best, (Washington’s cyberstalking law) is overbroad,” Skover said.

Even some in law enforcement appear to share this view, at least as it applies to the Renton case. According to KiroTV.com, the King County prosecutor’s office declined to help the police seek the search warrant, believing there was "insufficient evidence to proceed."

Collins said he could see why.

“It's an abuse of the cyberstalking law. It is hard to imagine that Washington lawmakers ever envisioned the cyberstalking law would be applied to situations where someone mocks or embarrasses police or public officials.”

anonymous September 10, 2011 at 08:47 PM
That isn't going to happen. Lets see, if Mr Fuddlesticks comes forward, he will endure a quick internal investigation, and be fired. No other department will hire him because of being fired for making cartoons. Mr Fuddlesticks will have to hire a lawyer, pay a hefty retainer fee and hourly rates. Years down the road, if it ever gets to trial, Renton PD will most certainly pay the back salary that he lost and maybe a little more. Then what? The lawyer gets even more money from any settlement, Mr Fuddlesticks is still out of a career. Nothing happens to the city or the chief or the city attorney or the mayor for violating search and seizure against Mr Fuddlesticks and nothing for violating freedom of speech. So, I say Mr Fuddlesticks will suffer in silence watching the department get away with it. Nothing will change. Everyone will work under the impression that they better keep their mouth shut or else be demoted or fired. For justice to prevail, the Mayor (Denis Law), the Chief (Kevin Milosevich), the City Attorneys (Larry Warren and Shawn Arthur), AND the search warrant affidavit write (Officer Ryan Rutledge) will have to be punished for such a blatent disregard and trampling of the Constitution. And since Mr Fuddlesticks' career will be over, as well as being the true victim, a seriously hefty fine needs to be levied against the city and those listed above personally for Mr Fuddlesticks. But...that just won't happen because no one really cares about justice.
jdrabe September 10, 2011 at 09:54 PM
I'll bet there are a ton of lawyers that would take Mr Fuddlestick's case on a contingency basis. The City clearly crossed the line with respect to Mr. Fuddlesticks (and everyone else's) constitutional rights. The law works for citizens as well as the government. The idiots who decided to pursue this witch hunt need to be held accountable for their actions in federal court. Fuddlesticks should pursue this, not just for his own sake, but also to send a clear message to the government on behalf of us all, that this type of government vendetta is unacceptable.
John Blackwell August 30, 2012 at 03:53 PM
People DO care about justice, that's why we're here talking about this. What if we made it easier to DO something about it; set up a Kickstarter or something similar to build up a war chest / support for Mr Fuddlesticks, and /or get the ACLU / EFF involved and level the playing field?
Sam November 15, 2012 at 11:28 PM
Shawn Arthur needs to focus his efforts and tax payer's dollars on something more important. This Assistant Prosecuting Attorney consistently abuses his power. He has no business handling domestic violence cases as he clearly has no firm grasp of evidence nor a firm grasp on how a woman's propensity for violence affects her children. I see a lawsuit coming regarding his handling of a recent case. Not only should he be disciplined, but he should only be allowed to try misdemeanor traffic offenses. That is the only thing he should be permitted to do, anything more cerebral, he does not have the capacity to handle. I fear for the City of Renton and how much money they are risking by allowing this idiot to make a mockery of the justice process.
No-More Legal-Abuse Bren September 12, 2013 at 11:08 PM
We need to open this up for discussion again. And "No more police sexual misconducts"... I've never given up! Zero Tolerance, and held accountable.

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