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):
- An Extra Perspective on the Possible First Amendment Problems Posed by Hate Crimes Laws:
- Jail Time for Sending Racist Message to a City Councilman: