A retired Air Force major is suing the state of Washington over its cyberstalking laws, which he says is unconstitutional under his First Amendment right to free speech.

The Bainbridge Island man brought suit against the state after he was told by county prosecutors they might charge him with cyberstalking if he did not stop his repeated online criticisms of a community activist on the island where both men reside.

A person is guilty of cyberstalking under the Revised Code of Washington 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 a person:

• Using any lewd, lascivious, indecent or obscene words, images or language, or suggesting the commission of any lewd or lascivious act;
• Anonymously or repeatedly whether or not conversation occurs; or
• Threatening to inflict injury on the person or property of the person or any member of his or her family or household.

Cyberstalking as outlined above is a gross misdemeanor, punishable by up to a year in jail and a fine of up to $5,000.

However, if either of the following applies, it is bumped up to a Class 3 felony, punishable by up to five years in prison and a fine of up to $10,000:

• The person making the unwanted contact has previously been convicted of the crime of harassment, as defined in the Revised Code of Washington, with the same victim or a member of the victim's family or household or any person specifically named in a no-contact order or no-harassment order in this or any other state; or
• The person engages in the behavior threatens to kill the victim or any other person.

Cyberstalking can be deemed to have been committed either at the place from which the communication was made or at the place where the communication was received. When the statute refers to “electronic communication,” it means the transmission of information by wire, radio, optical cable, electromagnetic or other similar means. It includes, but is not limited to, electronic mail, internet-based communications, pager service and electronic text messaging.

In the Bainbridge Island case, the defendant says the text messages and Facebook posts he wrote in regard to a neighborhood memorial for the internment of Japanese-Americans during World War II did not rise to the level of cyberstalking under the law because he never threatened the other man. He said he was merely exercising his right of free speech and expressing his opinion about political issues, namely infringement of civil liberties during wartime, a sentiment evoked by the memorial which the target of his criticism helped to erect.

If you think you have been unjustly persecuted under Washington's cyber stalking and harassment laws, you need an experienced criminal defense attorney to fight for your legal rights. Call the Seattle Law Offices of Steve Karimi at (206) 621-8777 or contact him online.