I’m delighted to say that the Nebraska Supreme Court has just agreed to review State v. Drahota (Neb. Ct. App. June 16), a case that I am litigating pro bono. We don’t have an oral argument date set yet, but it will probably be during the first week of November. Here is my argument, from the 10-page petition for further review, on why the Nebraska Supreme Court should agree to hear the case; the argument on the merits — about why the Nebraska Supreme Court should reverse the decision below — will be quite similar, though of course not identical. Thanks again to Mayer Brown LLP (the firm with which I’m an academic affiliate) for providing support through their pro bono program; to Gene Summerlin of Ogborn, Summerlin & Ogborn for being pro bono local counsel; and, for their help as amici, to my coblogger David Post and the law professors who were willing to sign on to his amicus brief, to the Foundation for Individual Rights in Education, and to the ACLU of Nebraska.
Facts
In early 2006, Appellant Darren J. Drahota was a University of Nebraska student who had been in William Avery’s political science class. Avery was still a University professor, but had announced that he was running for the Nebraska Legislature.
Drahota e-mailed Avery on Jan. 27, 2006, which led to an exchange of 18 e-mails over two weeks. At least one of Drahota’s e-mails used epithets and personal insults of Avery, alongside political commentary. One of Avery’s e-mails used an epithet and an insult of Drahota as well, saying “I am tired of this shit” and saying Drahota “and the ‘Chicken Hawks’ in the Bush Administration” didn’t “have the guts” to join the military. At the end of the exchange, Avery e-mailed Drahota saying, “Please consider this email a request that you not contact me again for the purpose of spilling more vile [sic].” Drahota responded with an apology.
Four months later, Drahota sent two more e-mails to Avery, this time from the address “averylovesalqueda@yahoo.com.” In the first, Drahota wrote concerning the death of an Iraqi terrorist, and asked Avery: “Does that make you sad that the al-queda leader in Iraq will not be around to behead people and undermine our efforts in Iraq? . . . You . . . and the ACLU should have a token funeral to say goodbye to a dear friend of your anti-american sentiments.” The second had the subject line “traitor,” and read, in relevant part,
I have a friend in Iraq that I told all about you and he referred to you as a Benedict Arnold. I told him that fit you very well. . . . I’d like to puke all over you. People like you should be forced out of this country. Hey, I have a great idea!!!! . . . Let’s do nothing to Iran, let them get nukes, and then let them bomb U.S. cities and after that, we will just keep turning the other cheek. Remember that Libs like yourself are the lowest form of life on this planet[.]
After a bench trial, Drahota was convicted of breach of the peace. The Court of Appeals affirmed the conviction, based solely on the last two e-mails. 17 Neb. App. at 685, 687.
Argument
I. The Importance Of This Constitutional Precedent Warrants Review By This Court
The decision below sets an important precedent, in Nebraska and elsewhere, that sharply limits the constitutional protection for political speech. It appears to be the first published decision allowing criminal punishment for nonthreatening but insulting politically themed speech to an elected official or candidate for office. Prosecutors throughout Nebraska and the country will now be more likely to conclude that such speech could indeed lead to a prosecution. And citizens throughout the country will now be rightly concerned that their critical e-mails to government officials and political candidates will lead to criminal prosecution if a prosecutor concludes the e-mails contain “epithets” (even clearly political ones such as “traitor”) or “personal abuse.”
It is thus important for this Court to review the case, notwithstanding Drahota’s labeling his assignments of error in his pro se appellate brief as “issues” instead of “assignments of error.” 17 Neb. App. at 683. Drahota’s briefing was incorrect on this score. Nonetheless, he supported his claims with detailed argument. The state’s brief did not claim any waiver on Drahota’s part. The opinion below dealt fully with his arguments. And while the Court of Appeals stated it was reviewing the case for plain error, Id. at 684, it concluded there was no error at all.
The precedential force of the decision below is thus not limited to plain error cases. Because of this, reviewing the constitutional issue “is necessary to a reasonable and sensible disposition of the issues presented,” State v. Conover, 270 Neb. 446, 449, 703 N.W.2d 898, 902 (2005), both in this case and for the benefit of future speakers who might be deterred by the precedent set below. See, e.g., Linn v. Linn, 205 Neb. 218, 221, 286 N.W.2d 765, 767 (1980) (reviewing constitutional question in “‘the interests of substantial justice,’” though the issue had not even been raised below (quoting Wittwer v. Dorland, 198 Neb. 361, 253 N.W.2d 26 (1977))).
II. The First Amendment, And A Proper Understanding Of Breach Of The Peace Law, Bar Punishing Drahota’s E-Mails As “Breach Of The Peace”
The decision below is not only important but mistaken, both as to what constitutes “breach of the peace” and as to what the First Amendment protects. It is therefore likely to be confusing to lower courts, as well as likely to improperly deter constitutionally protected speech.
The e-mails in this case do not fit within any exception to First Amendment protection, nor are they like the speech that this Court has treated as a breach of the peace in the past. The e-mails do not contain “true threats” of illegal conduct; the opinion below did not suggest that the e-mails were threatening. Nor are they libelous, despite the assertion by the opinion below that the e-mail address from which they were sent (“averylovesalqueda@yahoo.com”) was “libelous,” 17 Neb. App. at 685, and despite the use of the word “traitor.” First, there can be no libel “‘when the words are communicated only to the person defamed.’” Molt v. Lindsay Mfg. Co., 248 Neb. 81, 91, 532 N.W.2d 11, 18 (1995). Second, in context Drahota’s “allegation” was a hyperbolic statement of opinion, not a statement of fact. See Letter Carriers v. Austin, 418 U.S. 264, 284, 286 (1974) (noting that “traitor” can be used not as a “representation[] of fact” but “in a loose, figurative sense”); Wheeler v. Neb. State Bar Ass’n, 244 Neb. 786, 792, 508 N.W.2d 917, 922 (1993) (endorsing the Letter Carriers analysis).
A. The E-Mails In This Case Are Not “Fighting Words”
The rationale of the decision below is unclear, but the decision could be read as holding that the e-mails constituted “fighting words.” Such a holding would set an unsound precedent that should be corrected. The fighting-words exception consists of words that are so insulting that they are “inherently likely to provoke violent reaction.” Virginia v. Black, 538 U.S. 343, 359 (2003); Cohen v. California, 403 U.S. 15, 20 (1971); see also, e.g., Buffkins v. City of Omaha, 922 F.2d 465, 472 (8th Cir. 1990); Knight Riders v. City of Cincinnati, 72 F.3d 43, 46 (6th Cir. 1993). While face-to-face insults may therefore qualify as “fighting words,” e-mails sent to someone who is far away — and who thus cannot start an immediate fight with the sender — do not qualify. See State v. Fratzke, 446 N.W.2d 781, 785 (Iowa 1989) (concluding that defendant’s letter did not “tend to inflict injury or an immediate breach of the peace,” partly because “words contained in a letter” were “a mode of expression far removed from a heated, face-to-face exchange”); Tollett v. United States, 485 F.2d 1087, 1095 (8th Cir. 1973) (rejecting a fighting-words-like justification for a criminal libel law that covered mailed postcards, on the grounds that a “printed defamatory statement sent through the mails and not made face-to-face lends itself only to the remotest concern of persons resorting to violence ‘in defense of their honor’”); see also Layshock v. Hermitage School Dist., 496 F. Supp. 2d 587, 602 (W.D. Pa. 2007) (“A ‘MySpace’ internet page is not outside of the protections of the First Amendment under the fighting words doctrine because there is simply no in-person confrontation in cyberspace such that physical violence is likely to be instigated.”); Neudecker v. Shakopee Police Dep’t, 2008 WL 4151838, *8 (D. Minn. 2008) (concluding that even a “grossly offensive” letter didn’t constitute “fighting words” and therefore couldn’t constitute “disorderly conduct,” because “it was not likely to provoke a violent reaction or incite an immediate breach of the peace”).
Moreover, all of this Court’s cases that uphold convictions on fighting-words grounds have been fully consistent with this First Amendment principle: They have all involved speech capable of inciting an immediate fight, such as speech in a “face-to-face confrontation,” State v. Boss, 195 Neb. 467, 471, 238 N.W.2d 639, 643 (1976); see also State v. Groves, 219 Neb. 382, 384, 363 N.W.2d 507, 509 (1985); State v. Dreifurst, 204 Neb. 378, 379, 282 N.W.2d 51, 52 (1979), or speech from “across the street,” State v. Broadstone, 233 Neb. 595, 597, 447 N.W.2d 30, 32 (1989).
B. The E-Mails In This Case Cannot Be Punished On The Grounds That They “By [Their] Very Utterance Inflict Injury”
Alternatively, the court below might have concluded that speech is unprotected when it is not “civil discourse or debate,” 17 Neb. App. at 685, and contains “insulting . . . words,” which “by their very utterance inflict injury,” Id. at 686 (quoting Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)). Under this theory, merely being insulted would be an “injury” that may lead to prosecution of the speaker, even if the speech does not “tend to incite an immediate breach of the peace,” Id.
Yet no previous Nebraska precedent has found a “breach of the peace” where speech was merely insulting, rather than threatening or likely to provoke a fight. And such an application of the law would conflict with U.S. Supreme Court precedent: Whatever the “by their very utterance inflict injury” prong of Chaplinsky might mean, it cannot refer to the “injury” of feeling insulted.
Speech about public figures (such as political candidates, see Hoch v. Prokop, 244 Neb. 443, 446, 507 N.W.2d 626, 629 (1993)), retains First Amendment protection even if it is not merely uncivil but “outrageous[],” “patently offensive[,] and . . . intended to inflict emotional injury.” Hustler Magazine v. Falwell, 485 U.S. 46, 47 (1988). Liability cannot be based on the “adverse emotional impact” of the speech. Id. at 55. As Hustler holds, even “repugnant” “vehement” and “caustic” insults of public figures, Id. at 50–51 — in that case, a scurrilous, deeply insulting, and nonsubstantive attack — are constitutionally protected. See also State v. McKee, 253 Neb. 100, 106, 568 N.W.2d 559, 564 (1997) (“The steadfast rule is that ‘“in public debate our own citizens must tolerate insulting, and even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment.”’” (quoting Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753 (1994))).
If anything, an attack distributed to millions, as in Hustler, inflicts more emotional distress and is a greater insult than two private e-mails. Likewise, the satirical discussion in Hustler of a noted clergyman’s supposedly having drunken sex with his mother in an outhouse, 485 U.S. at 48, is likely more insulting than the politically based insults at issue here. Nonetheless, Hustler made clear that Chaplinsky does not strip such uncivil speech of constitutional protection. 485 U.S. at 56.
This is why the Seventh Circuit has expressly held that
[a]lthough the ‘inflict-injury’ alternative in Chaplinsky’s definition of fighting words has never been expressly overruled, the Supreme Court has never held that the government may, consistent with the First Amendment, regulate or punish speech that causes emotional injury but does not have a tendency to provoke an immediate breach of the peace.
Purtell v. Mason, 527 F.3d 615, 624 (7th Cir. 2008) (concluding that Halloween lawn decorations mocking neighbors were not “fighting words” because they did not “inherently tend[] to incite an immediate breach of the peace,” though they caused “embarrassment, anger resentment, and for some, fear”). Likewise, United States v. Popa, 187 F.3d 672 (D.C. Cir. 1999), overturned the telephone-harassment conviction of a person who left not two but seven messages on a public official’s answering machine, messages that were not just grossly insulting but racist. The statute there clearly covered such messages; it was not just a breach-of-the-peace law, which can and should be interpreted as not covering e-mails such as those here, but a telephone-harassment statute banning all anonymous calls made “with intent to annoy, abuse, threaten, or harass.” Id. at 673. Still, the D.C. Circuit expressly held that the First Amendment prevented the statute from applying to “public or political discourse,” Id. at 677, including in that case discourse that contains epithets and insults.
C. Drahota’s Speech May Not Be Punished As “Breach Of The Peace” Despite Avery’s Request, Four Months Earlier, That Drahota Stop E-Mailing Him
A final possibility is that the opinion below upheld Drahota’s conviction because Drahota “knew after February 10 that Avery was finished with the ‘discussion’ and wanted no more e-mail from him.” 17 Neb. App. at 687. But the opinion does not state that this was a necessary condition for the court’s decision. A reader trying to find out what may legally be e-mailed to political candidates in Nebraska — or, conceivably, posted about them on a Web site — could thus reasonably conclude that harsh and insulting criticism is now criminal whether or not the target has sent a message asking that the criticism stop. This is especially so since previous Nebraska breach-of-the-peace precedents have never distinguished messages sent after a request to stop from other messages, and since nothing in the “by their utterance inflict injury” rationale suggests such a distinction.
And even if this was the rationale of the court below, this rationale cannot justify this prosecution. First, “[w]hen a candidate enters the political arena, he or she ‘must expect that the debate will sometimes be rough and personal,’” Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 687 (1989). Even intentionally annoying or abusive telephone messages left for government officials are constitutionally protected. Popa, 187 F.3d at 677. Likewise, “[a]s elected representatives of the people, [Members of Congress] cannot simply shield themselves from undesirable mail in the same manner as an ordinary addressee,” U.S. Postal Serv. v. Hustler Magazine, Inc., 630 F. Supp. 867, 871 (D.D.C. 1986), and this principle would apply equally to candidates for the state legislature.
Second, while a specifically defined statute banning further contact with someone who has said “stop e-mailing me” might be constitutional, at least if it excluded government officials, see Id. at 871, the approach taken by the opinion below is not. In Rowan v. U.S. Post Office Dep’t, 397 U.S. 728 (1970), the U.S. Supreme Court upheld such a specific statute that covered ordinary mail, but only because “[b]oth the absoluteness of the citizen’s right [to stop further mailings] under [the statute] and its finality are essential.” Id. at 737. “Congress provided this sweeping power not only to protect privacy but to avoid possible constitutional questions that might arise from vesting the power to make any discretionary evaluation of the material in a governmental official.” Id.
The decision below lacked the attributes that Rowan found “essential”: It engaged in “discretionary evaluation of the material,” concluding that Drahota’s e-mail was punishable because (among other things) it “hard¬ly represent[ed] civil discourse or debate,” “impugn[ed] Avery’s loyalty to the United States,” and supposedly “accused Avery of the crime of treason.” 17 Neb. App. at 685. Nothing in the opinion below announces any clear rule giving recipients the “final[],” “absolute[]” right to prevent further messages, with no need for “discretionary evaluation” by a government official of the messages’ content or quality. Rather, the opinion at most ambiguously suggests that senders may be barred from sending some kinds of messages, perhaps even if the recipient never ordered that they stop, and only if a judge later concludes the messages contain unfair accusations or are not “civil.”
And the approach adopted by the opinion below poses a serious danger of viewpoint discrimination. Just before it found Drahota guilty, the trial court said, “Let’s be a little bit more tolerant, Mr. Drahota, of people who you don’t agree with.” If Drahota had expressed intolerance of people who hold intolerable viewpoints — rather than of a mainstream figure such as Professor Avery — a “toleran[ce]” test (apparently used by the trial court) or “civil[ity]” test (apparently used by the Court of Appeals) might have come out in Drahota’s favor. Judgments about an argument’s civility are often influenced by how sound it seems; even harsh insults may be treated as being within the bounds of civility when aimed at people whom the observer sees as meriting harsh condemnation.
This is partly why the U.S. Supreme Court has rejected imposing even civil liability on “outrageous” speech — “‘[o]utrageousness’ in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views,” Hustler, 485 U.S. at 55. Imposing criminal liability for speech on the grounds that it is not “civil discourse or debate” or is not sufficiently “tolerant” is similarly unconstitutional.
In that respect, this case is much like Cohen v. California, 403 U.S. 15 (1971). In Cohen, a defendant was convicted for disorderly conduct because he wore a jacket bearing a vulgar word. The defendant wore the jacket into a courthouse, and the opinion noted that such speech might be prohibitable by a rule targeted solely to courthouses. Id. at 19; see also ISKCON v. Lee, 505 U.S. 672, 679 (1992) (holding that speech in nonpublic fora may be restricted through reasonable viewpoint-neutral rules). But Cohen nonetheless held that
[a]ny attempt to support this conviction on the ground that the [disorderly conduct] statute seeks to preserve an appropriately decorous atmosphere in the courthouse where Cohen was arrested must fail in the absence of any language in the statute that would have put appellant on notice that certain kinds of otherwise permissible speech or conduct would nevertheless, under California law, not be tolerated in certain places.
403 U.S. at 19. Likewise, any attempt to support Drahota’s conviction on the ground that breach-of-the-peace law seeks to protect people from repeated messages sent after they have asked that the messages stop must fail in the absence of any precedent that would have put Drahota on notice that certain kinds of otherwise constitutionally protected messages — neither threats nor fighting words nor other unprotected speech — would be punishable under such circumstances.
Conclusion
For the foregoing reasons, this court should grant further review, and reverse the Court of Appeals’ decision upholding Drahota’s conviction.
Tim says:
Are you doing this as part of FIRE’s legal network? Thank you so much for fighting for students.
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October 1, 2009, 1:44 pmChrisTS says:
The original decision does seem wrongheaded. On the other hand, this [former?] student was a first class jerk, IMHO.
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October 1, 2009, 1:45 pmPatHMV says:
You are of course quite correct on the law, but boy, these pro bono cases you guys take don’t always give you the most sympathetic of clients!
Still, the law must be upheld, particularly in free speech cases.
The thing I really wonder about cases like this is what the prosecutors were thinking. Is there such a dearth of crime in Nebraska that they truly had nothing better to do? Or did Avery win his election, and thus the prosecutors were seeking to look good in the eyes of a new legislator?
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October 1, 2009, 1:49 pmEugene Volokh says:
Tim: Nope, this is my own frolic and detour, though I much appreciate FIRE’s help as amicus on this.
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October 1, 2009, 1:50 pmsk says:
Come on, man. Intellectual honesty requires you to address the case in (PA?) where a YMCA resident left unwanted messages on a voicemail that were religiously intolerant of the recipient’s homosexuality. You expressed acceptance of the results of that case-where the accused fought for 7 years to get his professional license back.
Maybe not here, maybe not now-but really. Cowboy up and talk about the two cases.
Sk
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October 1, 2009, 1:53 pmOrin Kerr says:
sk,
I assume you are not an attorney.
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October 1, 2009, 1:56 pmSplunge says:
Well done, Professor Volt. Give ‘em hell.
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October 1, 2009, 2:03 pmChrisTS says:
Neither am I, but I still would not mess up that badly.
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October 1, 2009, 2:05 pmjosh bornstein says:
Eugene,
I think you had briefly mentioned this case (to me) earlier this week. As usual, you were modest as to your own role in the matter. Congrats on the most recent developments. Even asshats deserve First Amendment protections. (Maybe they need the protections even more than the usual fellow?)
Keep us updated as to any future developments.
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October 1, 2009, 2:06 pmrichard says:
I fully concur. What a jerk (but not a criminal).
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October 1, 2009, 2:42 pmPatHMV says:
jeez, sk, give it a rest already. As Prof. Volokh noted in the YMCA matter, the issue he was intent on discussing was the denial of the defendant’s professional license, and Prof. Volokh came out firmly in favor of not imposing the sanction of loss of a professional license (CPA) on the man because of his past conviction. Yes, he said along the way that there are valid, content-neutral laws and that the man was probably constitutionally convicted, but he also said that he wasn’t focused on that issue.
Moreover, there IS a difference between e-mails and telephones, and certainly between the specific statutes in the YMCA case which prohibited certain types of telephone calls. Here, the defendant is charged with a very old crime, “disturbing the peace,” and the complaint inherently looks at the content of the speech. While I’m not familiar with the specific telephone harassment laws at issue in the YMCA case, many such have nothing to do with the content of the speech, such as regulations regarding what time phone calls can be made. Moreover, as Prof. Volokh notes in this post, a statute which merely criminalizes repeatedly sending e-mails to a recipient after having been expressly instructed to stop doing would likely be constitutional. Most telephone harassment statutes with which I am familiar do specifically provide that the recipient must expressly request that the offender stop calling. It is then the refusal to obey the instruction which becomes the crime, which has no relationship to the content of the speech at all.
If you want to make an argument that the Professor is being inconsistent, because the two cases are actually analogous, why don’t you, you know, make the argument, rather than bore the rest of us with your insults?
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October 1, 2009, 2:44 pmJohn Friedman says:
Guys, the First Amendment is not there to protect smarmy, polite and genteel nice guys.
This is exactly the guy who it is meant to protect.
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October 1, 2009, 2:45 pmJ. Aldridge says:
I don’t think it was the purpose of the 1st Amendment to protect students from their teachers.
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October 1, 2009, 2:49 pmPatHMV says:
Who said otherwise, John Friedman? That we recognize his right to speak also indicates that we have the right to call him a jerk for his choice of speech.
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October 1, 2009, 3:00 pmChristopher Cooke says:
This case highlights the danger of “breach of the peace” statutes: the breadth of these statutes can be misused to capture protected speech because the statutes are so vaguely worded.
On the libel theory, is not the email address viewed by persons other than the recipient? If so, then there could be a libel cause of action.
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October 1, 2009, 3:08 pmChrisTS says:
In fact, as compared with the young man, we are being quite restrained.
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October 1, 2009, 3:16 pmTim says:
“Frolic and detour?” Does this mean that your employer will not bear liability for any potentially negligent acts on your part? :) Sorry, I just had to ask.
Any idea who at FIRE is going to draft the amicus brief? I was an intern there this summer, so I haven’t met the two newest scholars. I hope they will draw from the expertise of their two most recent scholars, Azhar Majeed and Kelly Sarabyn, who are exceptionally bright people.
If there’s anything I can do to assist in the litigation or you should need anything, feel free to email me. I’m so glad to see that such a prominent legal scholar is fighting on behalf of freedom of expression for students. It is certainly an interesting topic to me, having worked at FIRE and because I’ll be starting law school next year.
Go get em!
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October 1, 2009, 3:16 pmShelbyC says:
Badmouthing these folks clients might put them in an awkward position. I suspect that’s the reason we can’t comment on Orin’s search thread.
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October 1, 2009, 3:19 pmSara says:
Sorry, what does this have to do with student-teacher issues, except for the seemingly irrelevant fact of that relationship, here? This case does not seem to be about protecting students, it seems to be about protecting an e-mailer in the context of a political campaign. Is there a student-teacher angle I am missing?
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October 1, 2009, 3:25 pmSara says:
In other words, would it matter, if they were not student and teacher?
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October 1, 2009, 3:30 pmSuperSkeptic says:
B. The E-Mails In This Case Cannot Be Punished On The Grounds That They “By [Their] Very Utterance Inflict Injury”
Alternatively, the court below might have concluded that speech is unprotected when it is not “civil discourse or debate,” 17 Neb. App. at 685, and contains “insulting . . . words,” which “by their very utterance inflict injury,” Id. at 686 (quoting Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)). Under this theory, merely being insulted would be an “injury” that may lead to prosecution of the speaker, even if the speech does not “tend to incite an immediate breach of the peace,” Id.
Yet no previous Nebraska precedent has found a “breach of the peace” where speech was merely insulting, rather than threatening or likely to provoke a fight. And such an application of the law would conflict with U.S. Supreme Court precedent: Whatever the “by their very utterance inflict injury” prong of Chaplinsky might mean, it cannot refer to the “injury” of feeling insulted.
If that is true, then what else could it possibly mean??? This “prong” of Chaplinsky, unfortunately, means just what it says — although it is so obviously wrong that it just hasn’t been applied. Unlike “fighting words” which is equally wrong, but less obviously so.
Moreover, there IS a difference between e-mails and telephones, and certainly between the specific statutes in the YMCA case which prohibited certain types of telephone calls.
No, there isn’t. I disagree with you. The only difference is we, by and large, do not have specific e-mail based harassment statutes like we have specific telephone based harassment statutes — yet. The reason for this is obviously that the technology has outpaced the legislative control and speech suppression. Give it time, and we’ll get them. Then the non-theoretical difference between telephone and e-mail will be treated equally by statute.
This case highlights the danger of “breach of the peace” statutes: the breadth of these statutes can be misused to capture protected speech because the statutes are so vaguely worded.
Agree. And harassment as well, maybe even disorderly conduct, too. IIRC, Mr. Chaplinsky himself was arrested and charged under a statute that outlawed saying mean things directly to other people in public.
* * *
Moreover, I think the argument is internally inconsistent (although not in any way that I think would detract from it’s persuasiveness to any Court I know). Here’s why:
The argument is essentially made that the speech should be sort of “extra” protected (or at least reviewed because of it’s important implications) because it is what Court’s have termed “core” or “political speech” — and this is consistent with the theory that the First Amendment is meant to protect political discourse in particular. Since Courts tend to subscribe to this view, I understand why this angle is used.
The decision below sets an important precedent, in Nebraska and elsewhere, that sharply limits the constitutional protection for political speech. It appears to be the first published decision allowing criminal punishment for nonthreatening but insulting politically themed speech to an elected official or candidate for office.
But then, the discussion toward the end involving the Hustler opinon and the argument that “the approach adopted by the opinion below poses a serious danger of viewpoint discrimination.” cuts the other way. What is “political speech” to some is not “political speech” to others. Some even could (and plausibly, I think) argue that ALL speech is political in some sense.
The fact is that regulating or restricting speech at all is ALWAYS flawed by “[‘]an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views,[‘] Hustler, 485 U.S. at 55.” So, characterizing some speech as “political speech” and arguing that it is somehow more important because of it’s alleged “social value” than some other odious or arbitrary or just jerk-based insulting speech is inconsistent with the claim that we don’t want “viewpoint discrimination.”
By segregating “political speech” one engages in “viewpoint discrimination”.
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October 1, 2009, 4:04 pmU.Va. Grad says:
I don’t think it was the purpose of the 1st Amendment to protect students from their teachers.
I don’t think that’s what’s at issue in this case.
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October 1, 2009, 4:11 pmDan Simon says:
Unless I missed it (and I admit I just skimmed the facts), no mention was made of whether the email address to which the offending emails were sent was that of the recipient in his role as political candidate, professor or private person. That would seem to me (a non-lawyer) to be pretty relevant, in the same way that a shouting protestor’s free speech rights might differ depending on whether he’s doing his shouting at a political rally, at the candidate’s (non-political) workplace, or in front of his home.
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October 1, 2009, 4:12 pmSara says:
I don’t see why that matters, Dan because we are talking about e-mail and not in person communication. That’s why, according to the brief, it’s not a threat or fighting words.
On another matter, whatever the rule of this case, I hope it doesn’t wind up standing for the proposition that students can send insulting e-mails to teachers, without any consequences (although, certainly not criminal consequences).
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October 1, 2009, 4:21 pmPatHMV says:
Dan, it makes no difference whether the e-mail is prefaced with “this e-mail is insulting you solely in your capacity as a candidate for public office, not in your capacity as a private citizen.” As Sara notes, the location and mode of speech might matter (in person, by phone, or by e-mail), but not the capacity in which the sender intended to address the recipient.
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October 1, 2009, 4:42 pmDan Simon says:
PatHMV, why wouldn’t the specific email address to which the emails were sent be an aspect of the “location and mode of speech”, as is the specific physical addresss at which a protestor protests? As a practical matter, the distinctions seem to me (again, as a non-lawyer) to be very similar: like a private home, a private email address is where one attends to private matters, and email messages sent there are hence more difficult to “wall off” by confining them to the workday, or protect against by bringing the resources of the workplace or political campaign to bear, than email messages directed at an “official” email address.
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October 1, 2009, 4:52 pmChrisTS says:
I was wondering how Mr. Drahota did in the course, myself.
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October 1, 2009, 7:46 pmRicardo says:
Did you actually read anything about the case?
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October 1, 2009, 8:06 pmtraveler496 says:
Given that the case will be reviewed, the decision’s apparent lack of clarity concerning its rationale seems to strictly favor the State (since it simultaneously increases the State’s latitude in coming up with a good rationale, and broadens the set of potential rationales for which Appellant counsel must prepare). Is that right, or am I thinking about this incorrectly?
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October 1, 2009, 9:15 pmDavid Nieporent says:
Really? Because my reaction when EV first posted about this was that the professor was a first class jerk. His former student sends him a rude email, and he calls the police on the student?
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October 2, 2009, 3:27 amMichael J.Z. Mannheimer says:
***SHAMELESS SELF-PROMOTION ALERT***
Eugene,
Be sure to cite my student Note, The Fighting Words Doctrine, 93 Colum. L. Rev. 1527 (1993).
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October 2, 2009, 5:30 amsk says:
“sk,
I assume you are not an attorney.”
I assumed this was not merely a legal blog, but a blog concerning the legal, social, and moral implications of the law.
So, for instance, an attorney may answer the question concerning the difference between voicemail harassment and email harassment by declaring (or implying) that the difference is self-evident, and simply quote (or infer) the relevant statues. Such an attorney would have nothing particularly interesting to say-in essence, he is functioning as the human equivalent of a google search engine (when asked a question, he simply searches his memory for the relevant statues, and spits them out).
Someone interested in the social and moral implications of a legal decision, however, may be intrigued by a little bit more. For instance, SHOULD there be a difference between email and voicemail harassment? How are they different, and how are they similar? Is a 7 year battle to regain professional licensing really a just outcome for voicemail harassement, given that email harassment is not merely protected, but protected to the point that an accused email harasser can count on pro bono work from academia? Is the law really ‘functioning’ when this happens? In other words, such an individual would have a bit wider perspective-he would not be merely the human equivalent of a search engine.
To answer your implied question, you are correct. I am not an attorney-my interests aren’t that narrow.
Sk
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October 2, 2009, 5:39 amShelbyC says:
Appearantly that’s a put-down in certain circles. Who woulda figured?
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October 2, 2009, 6:22 amcelticdragon says:
The language may not constitute “fighting words” in Counselor Volokh’s opinion...but I would have slugged the guy, personally.
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October 2, 2009, 8:26 amDan S says:
But would, “You, Sir, must be an attorney,” be fighting words?
:)
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October 2, 2009, 10:51 amSuperSkeptic says:
Maybe, but only if you’re right next to me and not e-mailing me or phoning it in: Lock ‘em up!
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October 2, 2009, 12:28 pmChrisTS says:
Well, you have a point, but I understood that the student sent many emails and then did so after being asked to stop.
Personally, I think not responding to such stuff from students would be the best first response. I don’t know what I would do if a student kept sending me nasty emails. I wonder how he behaved in class.
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October 2, 2009, 12:35 pmdave says:
sk -
Relax ... I think Orin was talking about the fact that you don’t understand the concept of this being a Nebraska case, so Eugene doesn’t have to address PA cases. That, and “cowboy up.”
You want to accuse Orin of a lack of intellectual curiosity? You obviously have never read a single word he’s written, on this blog or in his articles.
Except that one comment ... you clearly read that.
Lawyered!
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October 2, 2009, 4:24 pmmarkm says:
sk: You’re missing the most important difference: these are different laws in different states. The PA law prohibits leaving messages once you’ve been told to stop; if it doesn’t apply to e-mail as well as voice mail, I expect the legislature will extend it once this comes to their attention. Nebraska law doesn’t.
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October 4, 2009, 7:52 amKurt says:
To begin, I’ll simply state that I’m a Nebraskan (living in Lincoln), and have worked in political campaigns for awhile now. During this last national election cycle I worked with a candidate that ruffled some feathers. I’m interested to see at what point that ‘ruffling of feathers’ is more than what it is. As I am not a lawyer, but find odd enjoyment in reading these kinds of blogs, please be nice if you choose to reply.
Good luck sir! I’ll be in the audience listening to your oral arguments.
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October 5, 2009, 7:03 amThe Volokh Conspiracy » Blog Archive » State Declines to File Brief in My Pro Bono Nebraska Supreme Court case (State v. Drahota) says:
[...] I mentioned before, I’m litigating a pro bono free speech / cyberspace law case before the Nebraska Supreme Court. [...]