Good luck sir! I’ll be in the audience listening to your oral arguments.

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!

David Nieporent: 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?

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.

:)

Orin Kerr: sk, I assume you are not an attorney.

Appearantly that’s a put-down in certain circles. Who woulda figured?

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

Eugene,

Be sure to cite my student Note, The Fighting Words Doctrine, 93 Colum. L. Rev. 1527 (1993).

The original decision does seem wrongheaded. On the other hand, this [former?] student was a first class jerk, IMHO.

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?

J. Aldridge: I don’t think it was the purpose of the 1st Amendment to protect students from their teachers.

Did you actually read anything about the case?

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).

I was wondering how Mr. Drahota did in the course, myself.

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).

I don’t think that’s what’s at issue in this case.

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”.

Eugene Volokh: Tim:Nope, this is my own frolic and detour, though I much appreciate FIRE’s help as amicus on this.

“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!

PatHMV: 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.

In fact, as compared with the young man, we are being quite restrained.

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.

This is exactly the guy who it is meant to protect.

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?

ChrisTS: The original decision does seem wrongheaded. On the other hand, this [former?] student was a first class jerk, IMHO.

I fully concur. What a jerk (but not a criminal).

Keep us updated as to any future developments.

Orin Kerr: sk, I assume you are not an attorney.

Neither am I, but I still would not mess up that badly.