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Jail Time for Sending Racist Message to a City Councilman:

The Columbian (Vancouver, Wash.), reports in its May 20 issue:

[Christopher Reinhold] is serving an eight-day sentence in the Clark County Jail and will perform 20 days of community service [with the Battle Ground Cultural Diversity Task Force, which was formed in response to the incident] for sending racist e-mails last year about Battle Ground City Councilman Paul Zandamela....

Reinhold ... pleaded guilty March 30 to two counts of cyberstalking, a gross misdemeanor defined as using language meant to "harass, intimidate, torment or embarrass." ...

Zimmerman ... will also have to [pay $543 in fines and] attend two YWCA Eliminating Racism workshops and write a letter of apology to Zandamela....

According to court documents, Reinhold e-mailed a message Jan. 8, 2008, to city council members about Zandamela, a black man who was sworn in as a councilman the previous evening. "Our city government must be corrupt to have this (derogatory term) as an elected official," read the message in part. The message included four slurs and was signed, "Sincerely, a (derogatory term) hater." 'Anonymous, cowardly'

After Mayor Mike Ciraulo wrote back and told the council to ignore the message from "battleground anonymous," Ciraulo received a second message calling him a "stupid (derogatory term) lover." ...

What about the First Amendment? Well, first, "Defense attorney Jon McMullen had considered arguing that the comments were protected as free speech, but facing the possibility of federal charges — which could have netted Reinhold more than a year in prison — his client decided to plead guilty." As reported in this earlier article, "Lawyers at the U.S. Attorney's Office became interested in the case and on Friday wrote to Reinhold's defense attorney, Jon McMullen, that they would let the case rest if Reinhold changed his plea.... 'Basically, they said, 'If you fight it down here, win lose or draw, we'll charge in federal court,'' McMullen said."

And, second, "'It's not free speech,' the judge said Monday. 'It's anonymous, it's cowardly, it's hateful and it was racist.'" What is that supposed to mean? There's no anonymous speech exception to the First Amendment, no cowardly speech exception, no hateful speech exception, and no racist speech exception. Perhaps this was quoted out of context, and the context somehow radically changes the judge's meaning. But if it was quoted in context, then the judge's rationale strikes me as very wrong.

Finally, for what strikes me as the much better view on the First Amendment issue, see U.S. v. Popa, the D.C. Circuit decision cited and briefly discussed in this earlier post.

UPDATE: I should note that I assume the premise of the prosecution is that Zandamela was one of the recipients, which is what would make the e-mail even theoretically actionable as "cyberstalking." If the premise was that the defendant was sending offensive messages about a city councilman to other city councilmen, then the prosecution is even more outrageous. And I should acknowledge, on further thinking about this, that the state statute seems to allow such an unconstitutional result, because it provides (emphasis added),

(1) 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 [including e-mail] to such other person or a third party:

(a) Using any lewd, lascivious, indecent, or obscene words, images, or language, or suggesting the commission of any lewd or lascivious act;

(b) Anonymously or repeatedly whether or not conversation occurs; or

(c) Threatening to inflict injury on the person or property of the person called or any member of his or her family or household....

Again, if the prosecution is premised solely on the messages to third parties then this is a frightening result: It is completely unmoored from the premise of normal telephone harassment law (which is troublesome enough as to government officials, as Popa discusses), and it takes the view that it's a crime to send anonymous messages to government officials about other government officials "with intent to harass, intimidate, torment, or embarrass" the subject.

Related Posts (on one page):

  1. An Extra Perspective on the Possible First Amendment Problems Posed by Hate Crimes Laws:
  2. Jail Time for Sending Racist Message to a City Councilman:
dearieme:
What does "slur" mean in this context? Is it merely a rude word or does it imply a false accusation of misbehaviour?
5.26.2009 6:26pm
Matt_T:
Battle Ground Cultural Diversity Task Force

Report for re-education, citizen!
5.26.2009 6:34pm
whit:
wow, was i prescient or what?

(gives self pat on back)

i've been claiming the WA state cyberstalking statute is unconstitutional and dangerously overbroad for quite a long time.

it's a ridiculous piece of legislation.

i hope it gets some attention and gets found unconstitutional
5.26.2009 6:47pm
David Schumacher:
I assume there are no grounds for appeal ...
a) he plead guilty
b) he really did "harass, intimidate, torment or embarrass."
5.26.2009 6:51pm
linky-clicker:
B.G. teen pleads guilty in racist e-mail case: U.S. Attorney's Office helps find resolution; city councilor targeted”
by Isolde Raftery, Columbian.com, Mar 30, 2009:
 . . .

Lawyers at the U.S. Attorney's Office became interested in the case and on Friday wrote to Reinhold's defense attorney, Jon McMullen, that they would let the case rest if Reinhold changed his plea.

Reinhold had pleaded not guilty to a cyberstalking charge, which is a gross misdemeanor. On Monday morning, Reinhold changed his plea to guilty in District Court Judge Darvin Zimmerman's courtroom.

“Basically, they said, ‘If you fight it down here, win lose or draw, we'll charge in federal court,’ ” McMullen said.

 . . .
5.26.2009 6:52pm
Oren:

i hope it gets some attention and gets found unconstitutional

Agreed, but publicizing a case where the defendant voluntarily waived that issue is ridiculous.

In a civil law country where plea-bargains are less common, they might have a point. In the US, this proves nothing about nothing.
5.26.2009 7:22pm
whit:
oren, what annoys me to no end is that whenever an executive branch person (cop, etc.) fails to dot an "i" on an arrest warrant, instantly there are a bunch of posts about how they should be fined, imprisoned, etc. even for good faith mistakes.

otoh, we have legislators with ample time for hindsight, research, etc. and whose sole job is to WRITE FRIGGING LAWS that keep writing laws that are facially bogus, obviously unconstitutional, etc. and nobody bats an eye.

note that a bad law like this empowers literally thousands of peace officers and the power of the state to detain, arrest, imprison people for exercising their frigging first amendment rights. iow, it is far broader reaching when a legislature passes such a bogus law, than when there is an isolated screw up. one bad law can have ripple effects.

was there not one state legislator who, before this law was passed, who could stand up and say "this law is unconstitutional crap. why are we even considering it?"
5.26.2009 7:40pm
ShelbyC:

whenever an executive branch person (cop, etc.) fails to dot an "i" on an arrest warrant, instantly there are a bunch of posts about how they should be fined, imprisoned, etc.


Hey, I'm all for imprisioning the legislators too.
5.26.2009 7:52pm
Splunge:
What an outrage! Saying mean things about the people's tribune! Clearly we need to resurrect the Alien and Sedition Acts, so to prevent further outbreaks of uppityness.
5.26.2009 8:37pm
Oren:


note that a bad law like this empowers literally thousands of peace officers and the power of the state to detain, arrest, imprison people for exercising their frigging first amendment rights.

Not really, since S1983 attaches as soon as the law is settled.
5.26.2009 9:14pm
Fub:
whit wrote at 5.26.2009 7:40pm:
otoh, we have legislators with ample time for hindsight, research, etc. and whose sole job is to WRITE FRIGGING LAWS that keep writing laws that are facially bogus, obviously unconstitutional, etc. and nobody bats an eye.
Excuse my interlocution, but I'd like to say something for the record.

If any legislator even VOTES FOR an obviously unconstitutional criminal law, I favor hanging, drawing and quartering. I'd almost go that far for failing to kick lobbyists out of their office daily for proposing such laws.
5.26.2009 9:34pm
Eric Rasmusen (mail) (www):
That federal court district is one that's been in the news. It's where John McKay was US DA, fired by Pres. Bush after charges that he wasn't interested in vote fraud by Democrats. The current prosecutor is his successor, who seems to also be a liberal Republican, and only sort-of picked by Bush. He was in McKay's office and a natural interim DA, and was made permanent by the judges by a strange law that gives them that right if the President doesn't get someone confirmed in time. (Isn't a law like that blatantly unconstitutional?)

Here are details:



U.S. Attorney Jeffrey C. Sullivan, who has been serving in an interim status, was appointed today to serve as U.S. Attorney effective October 12, 2007, by order of Chief U.S. District Judge Robert S. Lasnik. Sullivan was originally selected by the U.S. Department of Justice to serve as the interim U.S. Attorney on January 26, 2007, following the resignation of U.S. Attorney John McKay. The interim appointment was set to expire on October 12, 2007. Today's order by Chief Judge Lasnik, on behalf of the U.S. District Court judges, means the U.S. Attorney's Office will continue to have leadership from a veteran prosecutor.

"I am gratified by the confidence the U.S. District Court judges have in my leadership," Sullivan said. "I am honored to lead what is recognized as one of the finest U.S. Attorney's Offices in the country."

Prior to his appointment as interim U.S. Attorney, Mr. Sullivan served as Chief of the Criminal Division within the United States Attorney's Office. Mr. Sullivan joined the office in 2002...




JEFFREY C. SULLIVAN APPOINTED U.S. ATTORNEY FOR WESTERN DISTRICT OF WASHINGTON
Judges Vote Unanimously to Appoint Sullivan Effective October 12, 2007




Also:

Sullivan was our (Yakima, the Other Washington) chief prosecuting attorney for 27 years. He tried to be a centrist politically, and I agree he's a careerist type. But he did leave with that missing evidence charge as a blot on his escutcheon.




And this:


Though his appointment was set to end Oct. 12, along with those of 11 other interim U.S. attorneys across the country, Chief U.S. District Court Judge Robert Lasnik said Sullivan was selected unanimously to stay on the job by the local federal judiciary.

A controversial provision of the USA Patriot Act allowed the Bush administration to name U.S. attorneys without confirmation from the Senate. That provision was repealed early this year amid the uproar over the firings McKay and at least seven other U.S. attorneys around the country.

Once the provision was repealed, the law regarding U.S. attorney appointments returned to its former state: If someone isn't nominated and confirmed to the position within 120 days, the federal court in the district gets to make the appointment. The appointment lasts until someone is nominated by the president and confirmed by the Senate.

Lasnik said last week that his law clerks had been reviewing federal law and he had consulted with other chief district court judges in the Ninth Circuit to see how they're handling the replacement of their U.S. attorneys.

"Our court has great regard for the United States Attorney's Office in this district and we wanted to maintain the standard of excellence and professionalism that John McKay set and that Jeff Sullivan has continued as Interim U.S. Attorney," Lasnik wrote in an email this morning.

5.26.2009 11:14pm
autolykos:

"Basically, they said, 'If you fight it down here, win lose or draw, we'll charge in federal court,' " McMullen said.


And yet the feds didn't even sniff Mike Nifong.

What a country.
5.26.2009 11:20pm

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