Last week I talked about the City of Renton Police Department, Renton Chief Prosecutor Shawn Arthur, and Renton Police Officer Ryan Rutledge, who reacted to internet cartoons making fun of unnamed members of the Renton P.D. by seeking a search warrant for the anonymous cartoonist's identifying information on the theory that he had violated Washington's profoundly overbroad and silly "cyberstalking" law by using the series of tubes to cause embarrassment.
I noted that Kings County Judge James D. Cayce had acted like the good compliant little rubberstamp that the cops expect, notwithstanding the patently absurd legal theory underlying the warrant application and the clear violation of First Amendment rights it represented. Good judge! Sit. Speak. Have a biscuit.
Now there have been developments.
Multiple sources indicate that Judge Cayce has stayed his own search warrant based on the application of a Seattle attorney named Harish Bharti, who might or might not represent the anonymous cartoonist.
King County Superior Court Judge James Cayce ordered the stay Tuesday on two search warrants he previously signed for the Renton Police Department. Officers have been searching for the identity of the cartoonist for months.
The stay came after Seattle attorney Harish Bharti filed a motion to quash the warrants, in a move he described as a fight to preserve the First Amendment.
"The cartoonist and everybody else have a constitutionally protected right to be anonymous and exercise their free speech and expression," Bharti said.
"This abuse of police power is beyond belief."
Bharti also asserts that the Renton PD shopped the warrant to the County DA's office and got shot down until they found a compliant censor in Renton's Chief Prosecutor Shawn Arthur.
Renton's officials claim that Judge Cayce issued the stay because of a scheduling conflict, not because the motion to quash had any merit. That's not, in my experience, how search warrants work. But we'll see, won't we?
Not content for its Chief Prosecutor and Police Department to be the subject of uniform nationwide scorn for abusive censorious douchebaggery, Renton is bringing more of its staff into the mix and doubling down.
City Attorney Larry Warren indicated Tuesday he's confident the city's legal analysis that led to the search warrant will prevail.
Is that SUPERLAWYER Larry Warren, about whom Renton bragged when he was proclaimed SUPERLAWYER by a vanity-press marketing scheme that most competent lawyers scorn? What does SUPERLAWYER Larry Warren say about it?
Renton's city attorney, who has practiced law for more than 30 years and has tried many First Amendment cases, disagrees with [critics'] analysis.
Free speech and cyberstalking are "completely different topics. They shouldn't be mixed up," he said.
Someone can call for Barack Obama's impeachment, which is free speech, he said, but spray-painting something on a fence is a crime. The city maintains "there is probable cause to believe that the elements of a crime may be there" to prosecute a case of cyberstalking, he said. That's why the city requested a criminal search warrant, he said.
"That's my belief that the videos are not protected free speech," he said. "Someone who doesn't have all the facts could disagree with that."
Oh, Larry. You must be some sort of Bizarro-World SUPERLAWYER. Because the "completely different topics" line is — and you're SUPER, Larry, so I know you can take it when I say this — the stupidest fucking thing I've ever heard said about free speech law. And I spend a lot of time on the internet.
Larry is attempting a censor's move that I've described before: an an appeal to the categorical, suggesting that something just doesn't count as free speech because it belongs in a different box, in this case the insipidly trendy, unprincipled box called "cyberstalking." But there's no "cyberstalking" exception to the First Amendment, Larry, and even if there were, it wouldn't reach embarrassing cartoons making fun of public officials. Just ask First Amendment God Eugene Volokh.
If the prosecutor is right that the statute should be interpreted this broadly, then it’s clearly unconstitutionally overbroad. Speech to the public doesn’t lose its constitutional protection because it’s intended to torment or embarrass. (It may lose such protection when it’s intended to be perceived as a true threat of criminal attack, but that’s not the issue here.) Nor does lose its constitutional protection because it uses “lewd” or “indecent” terms. And while one-to-one speech said to an unwilling listener may in some circumstances be restricted — which is the reason traditional telephone harassment laws, if properly crafted, may be constitutional — this rationale can’t be used to suppress speech said to the public, even if the people discussed in the speech are tormented or embarrassed by it.
Moreover, the statute would be clearly unconstitutional as applied to this video, and the prosecutor and the judge ought to know this. (The prosecutor is Renton Chief Prosecutor Shawn Arthur; the judge is James Cayce.) A search warrant can only be issued if there is probable cause to believe that it will uncover evidence of a crime; since the material described in the affidavit can’t be made criminal under the cited statute, given the First Amendment, the warrant ought not have been issued. The government is not permitted to use its coercive power to identify the author of this constitutionally protected video.
I recognize that you're a SUPERLAWYER with 30 years of experience, Larry, but let me put it this way: in the First Amendment superhero pantheon, Eugene Volokh is Galactus and you're, say, Aquaman — on a good day. The proposition that a cartoon can be a crime because it is intended to cause embarrassment to a public official — and does so — is offensively stupid, an insult to the law and to the language used to utter it.
And don't try to defend this horror-show with "you don't know all the facts," SUPERLAWYER Larry. A search warrant application is supposed to state all the facts that support probable cause. If it's not in there, it's irrelevant. Moreover, what facts could possibly make satirical videos released on the internet to ridicule public officials a "cyberstalking" crime?
Judge Cayce may yet redeem himself and tell the City of Renton to grow the hell up, grow a thicker skin, read the Bill of Rights, and check their liability insurance. Or he may continue to be a pathetic rubberstamp. But sooner or later the grown-ups are going to get involved, and the City of Renton is going to get a sharp, expensive lesson.
Really, where do they find these people?
Last 5 posts by Ken White
- A Response To Marc: Institutions, Agendas, and the "Culture War" - January 13th, 2016
- Lawyering Is About Service, Not Self-Actualization - January 11th, 2016
- Lawsplainer: Was FAU Prof. James Tracy Fired in Violation of His First Amendment Rights? - January 7th, 2016
- Defy, Defy, Defy. - January 7th, 2016
- President Obama And The Rhetoric Of Rights - January 5th, 2016