Censorious City of Renton Doubles Down the Dumb Against Mean Cartoons

Law

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

23 Comments

20 Comments

  1. David  •  Aug 10, 2011 @11:31 am

  2. Mad Rocket Scientist  •  Aug 10, 2011 @1:19 pm

    And, of course, when the city does get spanked with a hefty judgement, no one responsible will be fired.

  3. Linus  •  Aug 10, 2011 @1:25 pm

    Totally self-serving comment alert:

    Renton’s city attorney, who has practiced law for more than 30 years and has tried many First Amendment cases, disagrees with [critics'] analysis.

    This type of thing makes me feel much better about myself. I've met precious few colleagues who, when disagreeing with me or my client's position, do not pull out the "son, I've been practicing for X years, and when you get a little more experienced…." Sometimes, it's true—there's a procedural tip or secret I've not learned yet, or a piece of inside info (Judge Wabash will NEVER dismiss an NCO at the 14-day hearing) that I haven't yet been privy to. But most of the time it's idiocy like this: I've been in practice a long time, and so you should just shut up.

    If his analysis were accurate, isn't every political cartoonist who ever lived a career criminal?

  4. Justthisguy  •  Aug 10, 2011 @5:11 pm

    I f the SUPERLAWYER's virtual face were a speed bag, and you were wearing your virtual slapping gloves, as you are, that post could be paraphrased as SLAPslapslapSLAPslapslapSLAPslapslapSLAPslapslap…… n.

    I think I can now forgive you for giving any countenance whatsoever to the Southern Preposterous Lie Center.

  5. G Thompson  •  Aug 11, 2011 @12:58 am

    So… does a SUPERLAWYER wear their Briefs on the outside of their Law Suits?

    ———

    I'm wondering here what would occur if someone who resides in another continent, so myself, started to create some more of these videos and sent them around the video tube sites, what the City of Renton would then do? hmmmm

  6. Xenocles  •  Aug 11, 2011 @4:11 am

    You keep saying "Kings County." It's "King County." It used to be named after some other guy named King but now it's conveniently named after Martin Luther King Jr.

  7. Prefect  •  Aug 11, 2011 @4:32 am

    I almost hurt myself laughing at the "Galactus versus Aquaman" bit.

  8. marco73  •  Aug 11, 2011 @4:52 am

    "Officers have been searching for the identity of the cartoonist for months."
    Wonder how much time/money has been expended trying to figure out who Mr Fiddlesticks really is.
    So I guess the crime rate in Renton must be zero, if they have this much time on their hands.
    I think your last paragraph says it all – "sooner or later the grown-ups are going to get involved." But I predict there will be another round of stupid first.

  9. DickWhiskey  •  Aug 11, 2011 @7:03 am

    Uhm, awesome. Just awesome.

  10. Mannie  •  Aug 11, 2011 @11:17 am

    So I guess the crime rate in Renton must be zero,

    No, just the solution rate.

    But be of good cheer. They still have priority out on stop sign runners, and the speed traps are all in place.

    For the record, I declare that Persecutor [sic] Shawn Arthur, Pig Ryan Rutledge, and Judge James D. Cayce fellate dead camels and pimp out their daughters on street corners. Molon Labe, assholes!

  11. mojo  •  Aug 11, 2011 @1:22 pm

    Aquaman? Oh, gee, he can talk to fish?

    Better to be Namor. At least you get a crown.

  12. mojo  •  Aug 11, 2011 @1:23 pm

    PS: Do fish have much to say, do you think?

  13. Miskellaneous  •  Aug 11, 2011 @1:37 pm

    Don't mix Marvel and DC.

  14. delurking  •  Aug 11, 2011 @2:18 pm

    So why aren't there about 8000 xtranormal cartoons making fun of these people by name?

  15. boom  •  Aug 11, 2011 @5:38 pm

    I thought this was all settled by Jerry Falwell and Larry Flynt a couple dozen years ago.

  16. Sid_the_Vicious  •  Aug 11, 2011 @10:18 pm

    It's funny how this has blown-up in the Chief's face. I live in Canada, and heard about it on Slashdot.

    There is a similar video on YouTube which lampoons the Ottawa Police Service. Even though we have much weaker free speech protections than you enjoy, I haven't seen the Ottawa Police Service trying to have the video taken down; nor have I seen them try to unmask the identity of its creator. FWIW, the video actually references the Ottawa Police Service by name. I guess they've just got thicker skins and/or know how to take their lumps when it's deserved.

  17. nrasmuss13  •  Aug 14, 2011 @12:55 am

    "Officers have been searching for the identity of the cartoonist for months."

    Brought to mind the old adage regarding two hands, a flash light, an ass (pardon my french), and the inability to find said ass. I wish them much luck. Also to Judge Cayce, I hope his scheduling problem works itself out.

  18. nrasmuss13  •  Aug 14, 2011 @12:56 am

    Still can't get that darned block cite thing right. How the heck do I close it off?

  19. Douglas Muth  •  Sep 1, 2011 @11:21 am

    Eugene Volokh is Galactus and you’re, say, Aquaman

    And I call statements like this, "Appeal to my inner nerd". Excellent work! :-)

    As a non-lawyer (I'm a software engineer), I rather like your blog! I added it to my RSS reader and hope you write many more awesome posts like this one.

    All the best,

    – Doug

  20. runfuddlesticksrun  •  Sep 24, 2011 @9:32 am

    And now there has been a shredding party of public records to cover the violation of free speech and protection against unreasonable search and seizure. http://www.kirotv.com/news/29256408/detail.html

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