Appeals Court reverses conviction in freedom of speech case

In a case testing free speech restrictions, the state Court of Appeals recently reversed the convictions of a man accused of trying to intimidate two city of Oak Harbor employees in 2017.

The ruling was filed Dec. 30 as a published opinion, which means it established precedent and can be cited in the future.

A jury in Island County Superior Court found Jeremy Dawley guilty of two counts of intimidating a public servant, but the appeals court ruled the statute is constitutionally overbroad because it restricts a substantial amount of free speech. The justices noted that a law that restricts free speech is subject to strict scrutiny and must be narrowly tailored to serve compelling interests of the government.

“No matter the motive behind an individual’s attempt to influence a public servant’s vote, opinion, decision or other official action as a public servant,” the opinion states, “such pure political speech is at the core of the First Amendment and necessarily subject to heightened protection.”

The American Civil Liberties Union of Washington filed an amicus brief in support of Dawley, arguing that the statute for intimidating a public servant criminalizes political speech.

“Criticism of public officials is a fundamental exercise of political speech rights protected by the First Amendment and by the Washington Constitution,” the brief states.

Dawley, who had been discharged from the Navy after suffering a brain injury, had a history of being antagonistic toward police officers and acting strangely. He was preoccupied with traffic complaints, making 144 calls to the emergency dispatch center in a three-week period, and became upset when officers practiced discretion in enforcement.

In rambling conversations with police officers and the city attorney, Dawley made comments about using “Green Beret tactics” and owning a sniper rifle. He told the police chief he would give out the Oak Harbor city attorney’s personal information to rapists and violent offenders.

Dawley was then arrested after he made public records requests for information about sexual and violent offenders, then went to the city attorney’s office.

In arguments at the appeals court, Chief Criminal Deputy Eric Ohme with the Island County Prosecutor’s Office conceded that Dawley did not make a “true threat,” which is one of the few categories of speech not protected by the First Amendment. State law has 10 definitions for what constitutes a “threat,” but a “true threat” is about violence; it’s a statement meant to frighten or intimidate someone into believing they will be seriously harmed.

Ohme argued that the statute was constitutional because it doesn’t criminalize “pure speech,” but that it contains two requirements that must be met for convictions, namely a threat and the intent to influence a government employee’s action.

In addition, he argued that the phone calls made to city staff should be considered private speech, which is subject to less constitutional scrutiny than speech in the public domain, that the law affects only a narrow class of people and the government has a compelling interest in limiting speech meant to intimidate public employees.

In the opinion, the justices found that the intimidating a public servant statute can be saved with a jury instruction that limits it to true threats alone.

The appeals court decision means Dawley’s conviction is overturned, though he has already served a jail sentence and moved to Eastern Washington. Court records indicate that he has been arrested this year in two felony cases. In one case, he faces charges that include second-degree assault, assault of a law enforcement officer and attempting to elude a pursuing police vehicle; the other involves malicious mischief charges.

A judge ordered that Dawley receive a competency evaluation from a mental health provider, court documents indicate.

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