Those of you who have been following this free speech / cyberspace law case — which I’m litigating pro bono — can now see starting the video of yesterday’s oral argument before the Nebraska Supreme Court. My opening argument starts at about 39:00, and lasts for about five minutes; it’s followed by the State’s argument, followed by about five minutes of my rebuttal. I’m cautiously optimistic, but I guess we’ll know in several weeks what the Justices really thought. [...]
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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. [...]
When I blogged about the case, several commenters asked whether the ACLU would get involved. I’m pleased to say that the ACLU just filed a motion to file an amicus brief on our side:
ACLU seeks to participate in this case to urge this Court to reverse the lower court’s decision that Appellant’s conduct was criminal rather than protected expression under the First Amendment…. As described more fully in the Statement of Interest that will be submitted in the briefing should this motion be granted, the lower court’s decision in this action violates the constitutional guarantee of free speech and creates a new, unconstitutional standard to judge such cases.
Now we’ll just have to see what the Nebraska Supreme Court does. (Recall that at this point the decision before the court is only about whether to agree to further review the Nebraska Court of Appeals’ opinion, not about whether to reverse that opinion on the merits.) [...]
Defendant is charged with Aggravated Harassment pursuant to Penal Law §240.30(1)(a) which allegedly occurred August 20,2012. It is alleged that Mr. [Barboza] signed a traffic payment correspondence with the words “FUCK YOUR SHITTY TOWN BITCHES” written across the top.
The aforesaid section of law is intended to prohibit communication “… with a person, anonymously or otherwise, by telephone or by telegraph, mail or any other form of written communication, in a manner likely to cause annoyance or alarm.”
Defendant now moves to dismiss together with other relief.
Without doubt the Defendant’s comment was crude, vulgar, inappropriate, and clearly intended to “annoy”. Nevertheless, it is not a threat, it does not contain “fighting words”, or create an “imminent danger”. While it might seem to fall within the four corners of the aforesaid statute, it is nevertheless subservient to the First Amendment of the United States Constitution which provides for and allows a broad range of “free speech” in the nature of opinion and public comment.
Defendant has submitted an extensive brief with numerous citations. However, no citation is necessary for this Court to determine that the language under the circumstances here, offensive as it is, is protected. The charge is dismissed.
The government had argued in state court that the prosecution was constitutionally proper; you can see Barboza’s motion to dismiss, which seemed to me quite well done, and the state’s opposition, which struck me as quite weak.
Barboza is now suing in federal court, arguing that his arrest violated the First Amendment and the Fourth Amendment. (The Fourth Amendment argument turns on the First Amendment argument, since the theory is that, because the statute couldn’t constitutionally be applied to the speech, the arrest for violating the statute lacked [...]
I had some colleagues of mine do a moot court for my Obsidian Finance Group v. Cox argument tomorrow — many thanks to Profs. Stuart Banner, Sam Bray, Joanna Schwartz, and Steve Yeazell for that — and I also had the administration invite students to watch; about 40 students showed up, I think, and my sense is that they found it interesting, if only because they got to see a professor being grilled instead of doing the grilling. I did the same for my State v. Drahota argument a few years ago, and that seemed to have gone well, too.
I think this might be a good practice for law schools to engage in generally — whenever a faculty member is litigating a case and has a moot court for a forthcoming argument (even trial-level, but especially appellate), invite the students. It’s educational and even entertaining for the students, and I think it helps students see us as lawyers (even if only occasional lawyers) and not just as academics. [...]
Thank you to Eugene for inviting me to guest blog on The Volokh Conspiracy this week. By way of introduction, I am a First Amendment lawyer and the president of the Foundation for Individual Rights in Education (FIRE), and my new book, Unlearning Liberty: Campus Censorship and the End of American Debate, hit the bookshelves just last week.
As some readers know, Eugene has taken a special interest in campus censorship. He has frequently highlighted FIRE’s work on this blog and was a keynote speaker at our 10th Anniversary Dinner. We have also worked together on a couple of cases, including State v. Drahota and Snyder v. Phelps.
This week, I will be writing about the reality of campus censorship, the prevalence of campus speech codes, and numerous shocking stories that show how even relatively tame and uncontroversial speech is targeted. Look for my next post to see some remarkable cases of campus censorship.
But I will also be going beyond the laundry list of horror stories and discussing the many ways in which campus censorship harms us all. As I discuss in my book, I believe that it damages our greater society in two distinct ways.
The first and most dangerous harm is that speech codes and ridiculous “free speech zones” make students far too comfortable with restrictions on their freedom of speech. In a recent case at the University of Cincinnati, for example, libertarian students were restricted to only 0.1 percent of campus when they wished to collect signatures for a ballot initiative, and were threatened with police action if they strayed outside those boundaries. Further, I argue that frankly creepy indoctrination programs like the one run out of the University of Delaware teach students that censorship of “wrong” opinions is what good and educated [...]
The case is People v. Louis, a New York trial court case decided Wednesday. This seems consistent with United States v. Popa (D.C. Cir. 1999), discussed in this post, and also (though the analogy is less direct, given the difference in the statutes involved) with the Nebraska Supreme Court People v. Drahota decision).
The defendant is accused of having committed a violation of PL §240.30(1), Aggravated Harassment [in the second degree]…. The supporting deposition in this case states, in pertinent part, the following:
… On or about and between February 22, 2010 and April 11, 2010, while employed at the Nassau County District Attorney’s Office … as an Assistant District Attorney, I received a series of telephone voice mail recordings from defendant, Nicolas Pierre-Louis…. In the voice mails, Nicolas Pierre-Louis yells, screams and uses profanity, stating in part, “I’m coming at you with fury,” and, “piece of shit faggot fucking cock sucking cock,” and “bitch, you will lose your fucking job,” and “I got all the juice enough to make sure that you’re holding a can in the fucking street,” and “and I will keep calling until you arrest Jessy Pierre-Louis, so do your fucking job” and “when you lose your job bitch, don’t say I didn’t warn you,” and “I will rain hell on your office and make sure heads roll,” “you racist bitch” and “you assholes” and “you motherfuckers.” Nicolas Pierre-Louis says many other profane and offensive comments left recorded on my office voice mail that are alarming and annoying. The repeated calls left by Nicolas Pierre-Louis caused me to fear for my safety and the safety of [another] Assistant District Attorney … because of the screaming outbursts of rage and anger directed toward [the other ADA] … and I [sic] and the content of
N.H. Stat. § 644-4 makes it a misdemeanor to, among other things, “[m]ake repeated communications at extremely inconvenient hours or in offensively coarse language with a purpose to annoy or alarm another.” In re Alex C. (N.H. Sup. Ct. Nov. 30) upheld the conviction of a minor for sending 20 instant messages in the span of an hour to a friend’s mother, apparently using the terms “fucking idiots,” “bitch,” “fatshit,” “cunt,” and “faggot.” (The mother was using the daughter’s account at the time, because the daughter had run away from home and the mother was hoping “one of her daughter’s friends might respond with information that would help locate her daughter.”) The defendant’s legal claim was that conversations within one IM conversation didn’t count as “repeated,” but the New Hampshire Supreme Court rejected that.
The statute, though, would reach considerably beyond situations such as this one. First, it bans “repeated communications,” which might cover not only barrages such as the twenty messages here but even just a couple of communications. The opinion defines repeated as “renewed, frequent, or constant imparting of a message by any method of transmission,” and “constant” would seem to suggest a stream of communications; but “renewed” is given as an option, and the literal meaning of “repeated” does seem to cover even a small number of communications.
Second, it isn’t limited to personal insults. “Offensively coarse language” about someone other than the recipient would also qualify.
Third, it includes statements meant to do many things, including to annoy — for instance, to inform people of some alleged misbehavior on someone’s part, and at the same time annoy the misbehaving person. The statute requires only “a purpose to annoy,” not a sole purpose to annoy (and of course nearly all communication has at least some purpose other [...]
Lots of people helped me with the Nebraska free speech / cyberspace law case that the Nebraska Supreme Court just decided, so I wanted to publicly thank them. (All the documents to which I refer are available here.) Many thanks to:
Gene Summerlin of Ogborn, Summerlin & Ogborn, our local counsel, and Vern Schulte, for their help with all matters related to Nebraska procedure and to filing.
Mayer Brown LLP’s pro bono program for taking care of the various costs, and Don Falk, David Gossett, Marc Kadish, Philip Lacovara, Evan Tager, Andy Tauber, and Helene Siegel for their advice, feedback, mooting, and help.
Stuart Banner, Peter Eliasberg, Patrick Goodman, Michael Small, and Jack Weiss for sitting on a moot court for me here at UCLA.
Bruce Adelstein, David Kravitz, and Ben Siminou for feedback on my petition and brief.
Councilman Keith Brown, Assemblyman Michael Carroll, Representative Town Meeting Member Brian Cook, State Representative Dan Greenberg, Mayor Jeff Jennings, Supervisor Jim Patrick, Trustee David Schmidt, Mayor Randy Simmons, Board Member Jeff Steinport, State’s Attorney Jerod Tufte, Trustee Douglas Vatter, and Councilman Jack Weiss for filing the current and former elected officials’ amicus brief, and Bruce Adelstein for drafting the brief.
The Foundation for Individual Rights in Education and Prof. David Post for filing an amicus brief, and FIRE’s William Creeley and Azhar Majeed for drafting the brief.
The ACLU Foundation of Nebraska for filing an amicus brief, and Prof. Michael Fenner for drafting the brief.
Profs. Derek Bambauer, Stuart Benjamin, Eric Berger, Michael Carroll, James Forman, Eric Goldman, Dan Hunter, Andrew Koppelman, Brian Landsberg, Sanford Levinson, Frank Pasquale, David Post, Scot Powe, Martin Redish for filing an amicus brief, and David Post for drafting the brief.
Stan Sipple, whose e-mail to me last June alerted me to the case; without [...]
Here is an edited version of the opinion in the First Amendment / cyberspace law case that I briefed and argued, and that the Nebraska Supreme Court just decided today. It shouldn’t be terribly surprising or novel to those who know First Amendment law (though the Nebraska Court of Appeals decision that the Nebraska Supreme Court reversed was surprising). Still, I thought I’d pass it along in case some of our readers were interested.
The State convicted … Darren J. Drahota … of a breach of the peace based on two e-mails he sent to William Avery, his former political science professor and a candidate for the State Legislature. The e-mails — laced with provocative and insulting rhetoric and with the Iraq war as a background — suggested that Avery was a traitor and that he sympathized with Al Qaeda, a terrorist organization. [These e-mails followed an earlier exchange, in which Avery eventually asked Drahota to stop e-mailing him. -EV]
We are asked to decide whether Drahota’s e-mails were protected speech under the First Amendment. The Court of Appeals determined that the First Amendment did not protect Drahota’s speech because the e-mails were “fighting words,” an exception to free speech protection. We disagree….
This is the case that I briefed and argued last year (see here for my initial post about the petition for review to the Nebraska Supreme Court, and here for the various documents in the case, including the Nebraska Court of Appeals decision that had upheld the convictions). I’ll post more on the subject today, but for now I just wanted to note this and pass along the Nebraska Supreme Court opinion. Sometimes it’s a lot of fun to be a lawyer! [...]
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.
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 [...]
I’m glad to say I have an interesting pro bono case — a petition for further review by the Nebraska Supreme Court in State v. Drahota (Neb. Ct. App. June 16). Here’s the petition, which was just filed yesterday, with some of the formatting details omitted; hope you find it interesting. Please note that the petition went right up to the 10-page limit allowed for such petitions, so that it’s necessarily terse on some matters. Also, this is a petition for discretionary review by the state supreme court, and the goal is to persuade that court that the case is worth hearing. If the Nebraska Supreme Court agrees to hear the case, then I’ll write a brief that focuses solely on the merits.
In early 2006, Appellant Darren J. Drahota was a University of Nebraska student who had been in William Avery [...]