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.”