State Declines to File Brief in State v. Drahota (the Nebraska Free Speech / Cyberspace Law Case I’ve Blogged About)

As I mentioned before, I’m litigating a pro bono free speech / cyberspace law case before the Nebraska Supreme Court. My client, Darren Drahota, was convicted of two counts of breach of the peace for sending two rude messages to William Avery, who had earlier asked him to stop sending such messages. Avery was Drahota’s University of Nebraska professor and a candidate for the Nebraska Legislature. (Avery was elected and is now a state legislator.) We argued that such speech did not constitute breach of the peace, and was in any event constitutionally protected under the First Amendment; for more details, see here. The Nebraska Supreme Court granted our petition for further review, and agreed to hear the case; we filed the opening brief Oct. 20, and the state’s brief was due yesterday.

Today, we learned that the state has apparently elected not to file a brief. The local prosecutors had of course prosecuted the case, and the Nebraska Attorney General’s office had briefed the case before the Nebraska Court of Appeals. But at the Nebraska Supreme Court stage, no brief is apparently forthcoming. (The Nebraska Attorney General’s office does make such a decision every so often.)

Naturally, the state supreme court will still have to consider the case, since there is a Nebraska Court of Appeals opinion on the books, and the court needs to decide what to do with it. But the state’s decision not to defend the opinion, or the result it reached, strikes me as heartening.