When You’re Facing Tough Times…
Real Help That Makes A Difference

Criminal Harassment, Due Process, and Freedom of Speech in Seattle, Oak Harbor, and on Whidbey Island

Whidbey Island, Oak Harbor, and Seattle Attorney Discusses What Is Not “Harassment.”

Police officers might feel that certain conduct is “harassing.” Law enforcement may cite individuals for “harassment.” A complaining witness might feel or say that they are being “harassed.” But the truth is that what constitutes “harassment” is limited.


RCW 9A.46.020(1) provides the definition of criminal harassment. What constitutes “harassment” under this statute seems broad and sweeping. However, the statute is narrower than what it provides on its face. In fact the statute is actually unconstitutional on its face. See State v. Williams, 144 Wash. 2d 197, 206, 26 P.3d 890, 895 (2001).

In general, due process requires that laws must make sense, i.e., reasonable men of ordinary intelligence should not have to guess when it comes to what the law prohibits. This is the void for vagueness doctrine. The subsection of the criminal harassment statute that reads “maliciously to do any other act which is intended to substantially harm the person threatened or another with respect to his or her physical or mental health or safety” seems to potentially criminalize anything under the sun. However, the statute has been construed to not concern “mental health.” Id. at 212, 26 P.3d at 898 (“…the term “mental health” in RCW 9A.46.020(1)(a)(iv) renders the statute both unconstitutionally vague and overbroad). “Severing the term ‘mental’ from RCW 9A.46.020(1)(a)(iv) cures the constitutional infirmity.” Id. at 213, 26 P.3d at 898. Thus, the statute proscribes threats to (i) cause bodily injury, (ii) physical damage, (iii) subject a person to physical confinement or restraint, or (iv) threats to do malicious acts intended to substantially harm the person threatened with respect to physical health or safety. And these “threats” must be real or “true threats.”

It is true that not all speech is protected. Still, the scope of the First Amendment is broad. In fact, “courts have routinely found First Amendment protection extends to speech and conduct that society at large views as vile, politically incorrect, or borne of hate.” Williams, 144 Wash.2d at 209, 26 P.3d at 897 (2001) (citing, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S.Ct. 2538 (1992) (overturning convicting of juvenile for burning a cross in violation of content-based speech ordinance); Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827 (1969) (holding statements made at Ku Klux Klan rally advocating violence against blacks and Jews was protected speech); NAACP v. Clairborne Hardware Co., 458 U.S. 886, 102 S.Ct. 3409 (1982) (holding civil rights protestor’s admonition to crowd that “If we catch any of you going in any of them racist stores, we’re gonna break your damn neck” was protected speech).

The criminal harassment statute proscribes what is in fact “pure speech.” Thus, in order for it to not run afoul of First Amendment guarantees, statutes criminalizing threatening language are construed to only proscribe “true threats.” A true threat is “a statement made in a context under such circumstances wherein a reasonable person would foresee that the statement would be interpreted as a serious expression of intention to inflict bodily harm upon or take the life of another person.” State v. Allen, 176 Wash.2d 611, 626, 294 P.3d 679, 687 (2013).

Overall, the criminal harassment statute is significantly narrower than what is proscribes on its face. The statute does not concern “mental health” and only proscribes true threats. Unfortunately, all too oftentimes those in law enforcement look only to the statute and make subjective charging decisions. However, sometimes law enforcement might get it right when, for example, one blatantly threatens to decapitate a congresswoman. Still though, the “threat” must not be mere political hyperbole. See, e.g., Watts v. United States, 394 U.S. 705 (1969).

If you find yourself charged for something that you merely said contact an attorney at Platt & Buescher that will analyze potential due process and First Amendment issues in your case.