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Washington State Tries to Crack Down on Cyberbullying — But Routine Criticism Is Blocked Instead

The scourge of online harassment can scare many people away from expressing their opinions online. It’s a problem that calls for sophisticated, multi-layered solutions. But a law in Washington state is demonstrating how some approaches to the issue can go terribly wrong, potentially blocking the routine criticism of politicians and others that is an integral part of a functioning democracy. EFF and the American Civil Liberties Union of Washington have filed an amicus brief in a new federal legal case against this law, urging the judge to recognize the critical constitutional questions it raises.

At EFF, we’ve been watching Washington’s cyberstalking law for a long time. Among its provisions, it prohibits broadly defined “electronic communications” intended to “embarrass” someone that are made anonymously or repeatedly or include an obscenity. But a big part of political activism is naming and shaming folks who you think should do the right thing—it’s a powerful tool to get officials to do their job. It doesn’t take long to think of activities that could be criminalized by this law: one politician publishing various lists of questionable decisions made by an election challenger; a series of newspaper editorials arguing that a city official should be scorned because of misconduct; or an activist posting multiple videos of a lawmaker doing something unsavory. This is all important speech that is protected by the First Amendment, and no state law should be allowed to undermine these rights.

EFF and ACLU-WA’s amicus brief asks the judge to issue a preliminary injunction in this case, blocking enforcement of this unconstitutional law. We hope the judge does the right thing here, as this is a prime example of how a well meaning law can have terrible unintended consequences.

EFF thanks our local counsel, Judith A. Endejan of Garvey Schubert Barer, for her help in filing this brief.

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