Anti-Cyberstalking Laws: Misuse and The First Amendment Right To Free Speech

Cyberstalking, the use of the Internet or electronic communication to stalk or harass a person, is a serious and growing issue in the United States.[1] The proliferation of the Internet has brought about an abundance of means by which cyberstalkers can prey upon their victims.[2] Moreover, the effects of cyberstalking on victims are devastating, including invasion of privacy, mental and emotional anguish, physical violence and suicide.[3] State legislators have rightfully responded by crafting criminal anti-cyberstalking laws or amending traditional anti-stalking laws to account for technological advances in the Internet and electronic communications.[4] Legislators have recognized the need for anti-cyberstalking laws to encompass the many and constantly evolving ways that cyberstalkers can utilize the Internet.[5] However, anytime speech is regulated, there exists the possibility that the law may infringe on the First Amendment right to free speech. Expressive speech on the Internet is generally afforded robust First Amendment protection, similar to that of books, newspapers, and magazines.[6] Therefore, an anti-cyberstalking law that does not exclude constitutionally protected speech is vulnerable to misuse in ways that may trample upon the freedom of speech guaranteed by the First Amendment.

One such misuse of an anti-cyberstalking law recently occurred in the city of Renton, Washington. An anonymous individual posted on the Internet several videos of a cartoon parody mocking officers and employees of the Renton Police Department. The police department sought and obtained the approval of a judge for a search warrant to launch a criminal investigation to discover the identity of the individual who posted the videos. The police department alleged that the individual who posted the videos online had violated Washington’s anti-cyberstalking law.[7] Washington’s anti-cyberstalking law criminalizes the use of the Internet to make an electronic communication to a person or third party “with intent to harass, intimidate, torment, or embarrass” using any “lewd, lascivious, indecent, or obscene words, images, or language, or suggesting the commission of any lewd or lascivious act.”[8]

The cartoon parody video, while likely embarrassing to the officers and employees of police department, is constitutionally protected free speech.[9] The First Amendment, made applicable to the states through the Fourteenth Amendment,[10] prohibits states from enacting laws that infringe upon an individual’s freedom of speech.[11] This constitutional protection extends to expressive speech on the Internet.[12] Moreover, the First Amendment generally protects parody regarding public officials, even when offensive or embarrassing, absent an additional showing that the speech is false and made with actual malice.[13] Thus, Washington’s anti-cyberstalking law was misused to criminalize constitutionally protected free speech.

While an anti-cyberstalking law should be flexible enough to account for technological advances in the use of the Internet, it should also be carefully crafted to ensure consistency with the free speech protections of the First Amendment. To help achieve this balance, an anti-cyberstalking law can include a provision that expressly excludes speech protected by the First Amendment.[14] Many states already include such provisions in their traditional anti-stalking laws.[15] The Renton case illustrates the misuse of an anti-cyberstalking law that can occur when the law has not been tempered by the constitutional protections afforded free speech on the Internet.


[1] U.S. Dep’t of Justice, 1999 Report on Cyberstalking: A New Challenge for Law Enforcement and Industry, http://www.justice.gov/criminal/cybercrime/cyberstalking.htm (last updated Feb. 7, 2003) [hereinafter 1999 Report on Cyberstalking].
[2] Sarah Jameson, Cyberharassment: Striking a Balance Between Free Speech and Privacy, 17 COMMLAW CONSPECTUS 231, 235 (2008); see also Joshua N. Azriel, Social Networking as a Communications Weapon to Harm Victims: Facebook, MySpace, and Twitter Demonstrate a Need to Amend Section 230 of The Communications Decency Act, 26 J. MARSHALL J. COMPUTER & INFO. L. 415, 415-19 (2009).
[3] See Ashley N. B. Beagle, Modern Stalking Laws: A Survey of State Anti-Stalking Statutes Considering Modern Mediums and Constitutional Challenges, 14 CHAP. L. REV. 457, 465-66 (2011) (discussing the general effects of stalking on victims); see also Parents: Cyber Bullying Led to Teen’s Suicide, ABCNEWS.COM, (Nov. 19, 2007), http://abcnews.go.com/GMA/Story?id=3882520&page=1.
[4] Beagle, supra note 3, at 471-77 (surveying state anti-stalking statutes covering the Internet and electronic communication).
[5] 1999 Report on Cyberstalking, supra note 1.
[6] See Reno v. ACLU, 521 U.S. 844, 870 (1997).
[7] Cartoonist Targeted With Criminal Probe For Mocking Police, KIROTV.COM, (Aug. 3, 2011), http://www.kirotv.com/news/28758502/detail.html. On August 9, 2011, the judge issued a stay of the search warrant and ordered a full hearing on the matter. Judge Halts Renton Police Cartoon Search Warrant, KIROTV.COM, (Aug. 9, 2011), http://www.kirotv.com/news/28815941/detail.html.
[8] WASH. REV. CODE § 9.61.260 (2004).
[9] While certain speech on the Internet may give rise to civil actions, such as defamation, this comment concerns criminal liability under anti-cyberstalking laws.
[10] Gitlow v. New York, 268 U.S. 652 (1925).
[11] U.S. CONST. amend. I.
[12] See Reno v. ACLU, 521 U.S. 844, 870 (1997).
[13] Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 55-56 (1988); New York Times v. Sullivan, 376 U.S. 254, 283 (1964).
[14] See Naomi Harlin Goodno, Cyberstalking, a New Crime: Evaluating the Effectiveness of Current State and Federal Laws, 72 MO. L. REV. 125, 155 (2007) (arguing that anti-cyberstalking laws must specifically exclude constitutionally protected speech in order to pass constitutional muster and citing many state anti-stalking laws as examples).
[15] Id. at 155 n.185.

Author: Brian Scott

Brian Scott is a Senior Editor for the Rutgers Computer & Technology Law Journal. He attends Rutgers School of Law-Newark part-time in the evenings and will be graduating in May 2013. By day, Brian is a human resources manager for a State university where he specializes in employee/labor relations. He also volunteered during the summer last year as a part-time intern in the Trial Unit of the Union County Prosecutor’s Office. Prior to attending law school, Brian earned a B.S. in Management Science from Kean University and a Certificate in Paralegal Studies from Fairleigh Dickenson University. He is a member of the Law Student Divisions of the New Jersey State Bar Association and the American Bar Association.

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