Submitted by Gene Howington, Guest Blogger

Police in Renton, Washington are seeking an unknown cartoonist for cyberstalking.  To that end, officials have obtained a search warrant from a local judge to discover the identity of the anonymous cartoonist.  The alleged crime this cartoonist committed?  Posting cartoons online parodying the Renton Police Department and referring to real life internal affairs incidents at the Renton PD in the dialog.  It is important to note that neither is the Renton Police Department named nor are the real names of any people attached to the Renton Police Department are used in the cartoons linked posted by KIRO TV.   The videos are not in a format that can be embedded in WordPress, but the Jail Parody and the Locker Room Parody can both be seen at KIRO TV’s website.

Parody is protected free speech in many cases, but the case law is unclear in providing bright line definitions of what does and what doesn’t qualify as parody.  This often leads to detailed case by case examination of claims.  When the parody involves copyrighted materials, there are guidelines and tests to apply in determining if the parody is legitimate.  Generally speaking, there are two lines of defense involving parody: the free speech defense based in Constitutional law and the fair use defense based in copyright law.  As these parodies do not involve copyrighted materials, the fair use defense is not relevant here.  The free speech defense is another matter.  As a matter of Constitutional law, parody is protected free speech.  Is the Renton Police Department attempting to use a criminal statute to persecute a critic engaging in critical parody and repress the cartoonist’s 1st Amendment Free Speech rights?  Some think that’s exactly what they are doing.

KIRO TV brought the matter to the attention of attorney Venkat Balasubramani, an expert in cyber-law and constitutional issues.  After reviewing several of the parody videos and the court documents, Mr. Balasubramani offered the following opinions.  “The cyberstalking angle doesn’t pass the laugh test. It’s a serious stretch and I’d be surprised if somebody looked at it and realistically thought these acts actually fit the statute and we could make somebody criminally liable.”  When Balasubramani was asked about a more likely scenario, he said, “I think they were trying to get at the speaker and they looked around for a statute that shoehorned their conduct into and sent that to Google and said ‘turn over the information.'”

In Washington state, cyberstalking is defined by the Revised Code of Washington (RCW) 9.61.260 as follows:

(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 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.

(2) Cyberstalking is a gross misdemeanor, except as provided in subsection (3) of this section.

(3) Cyberstalking is a class C felony if either of the following applies:

(a) The perpetrator has previously been convicted of the crime of harassment, as defined in RCW 9A.46.060, 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

(b) The perpetrator engages in the behavior prohibited under subsection (1)(c) of this section by threatening to kill the person threatened or any other person.

(4) Any offense committed under this section may 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.

(5) For purposes of this section, “electronic communication” means the transmission of information by wire, radio, optical cable, electromagnetic, or other similar means. “Electronic communication” includes, but is not limited to, electronic mail, internet-based communications, pager service, and electronic text messaging.

After initial attempts by KIRO TV to contact both the City Attorney’s office and the Renton Police Department for comment concerning the motivation of the charges were rebuffed, the Renton Police Department finally issued a statement on Thursday.  “Some of the videos are incidents of misconduct, some are unsubstantiated, some are rumors, some are previous internal investigations that were found to be unfounded and some are just flat out untrue and lies.  I would rather err on the side of investigating all complaints (and) alleged criminal misconduct rather than risk failing to investigate a crime that’s been reported,” said Renton Police Chief Kevin Milosevich.  Some might think that statement sounds more like an excuse rather than an answer to whether the charges are proper or not.

Do you think the cartoons are protected free speech parody or legitimate cyberstalking?  Is the Washington statute the Renton Police are attempting to use over broad and subject to Constitutional abuses?  Is the Renton Police Department seeking to use criminal law to persecute and prosecute an artist’s permissible exercise of free speech rights?

What do you think?

Source: KIROTV.com (1), (2), RCW

~Submitted by Gene Howington, Guest Blogger