Nebraska Supreme Court Decision on Offensive E-Mails

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.

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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….

Offensive Speech Does Not Lose Its Constitutional Protection …

In concluding that Drahota’s speech constituted fighting words, the Court of Appeals relied on our decision in State v. Broadstone…. In Broadstone, we … quoted the U.S. Supreme Court’s decision in Chaplinsky v. New Hampshire to explain that fighting words are unprotected speech:

“‘[F]ighting’ words [are] those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. ‘Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.’ …”

Within this quote from Chaplinsky, there are two descriptions of fighting words. The first refers to words whose “‘very utterance inflict[s] injury.’” The other refers to words which “‘tend to incite an immediate breach of the peace.’” …

[Discussion of various precedents omitted. -EV] [I]n Gooding v. Wilson, the Court held that a breach of the peace statute was overbroad because it was not limited to fighting words. The Court reasoned that because the statute could be applied “to utterances where there was no likelihood that the person addressed would make an immediate violent response, it is clear that [the statute is not limited] to ‘fighting’ words defined by Chaplinsky.” In effect, the Gooding Court read the “inflict injury” prong out of the definition. Lower courts have followed the Supreme Court’s lead. “It is now clear that words must do more than offend, cause indignation or anger the addressee to lose the protection of the First Amendment.”

We agree. We hold that the State cannot constitutionally criminalize speech under [the breach of the peace statute] solely because it inflicts emotional injury, annoys, offends, or angers another person. Accordingly, we cannot affirm Drahota’s conviction merely because Avery found it offensive.

Drahota’s Speech Was Not Likely to Provoke an Immediate Breach of the Peace

The U.S. Supreme Court in Chaplinsky held that a state could regulate speech that tends to incite an immediate breach of the peace. Although the Supreme Court has not upheld such a conviction since Chaplinsky, other courts, including this court, have done so. In upholding such convictions, we have stressed that the right to use abusive epithets of “‘slight social value’” is outweighed by the State’s strong “‘interest in order.’”

Indeed, “[i]t is the tendency or likelihood of the words to provoke violent reaction that is the touchstone of the Chaplinsky test ….” … The context of Drahota’s speech was an ongoing political debate, not random obscenities directed at small children [referring to an earlier Nebraska case that did find the speech to be punishable fighting words -EV], which could likely provoke a response from nearby adults. Here, Drahota and Avery had corresponded for months on political issues. And both had made provocative statements during that dialog without incident. The First Amendment encourages robust political debate, particularly the right to criticize public officials and measures ….

By the time Drahota sent the e-mails at issue, Avery was running for office. And we have stated that “[t]he 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.”’” So even when criticisms of public figures are outrageous, if they fall short of provoking an immediate breach of the peace, they are protected by the First Amendment. To hold otherwise would obstruct the free exchange of ideas.

Yet, we do not hold that political speech can never constitute fighting words. It is not difficult to imagine insults virulent enough to provoke a breach of the peace in a political debate. But here, even if a fact finder could conclude that in a face-to-face confrontation, Drahota’s speech would have provoked an immediate retaliation, Avery could not have immediately retaliated. Avery did not know who sent the e-mails, let alone where to find the author. We conclude that the State has failed to show that Drahota’s political speech constituted fighting words.

[Rowan v. Post Office Dep’t]

Rowan [a U.S. Supreme Court case -EV] involved a federal statute that allowed a homeowner to request that a vendor remove his name from the mailing list and stop all future mailings if the homeowner found the mailings erotically arousing or sexually provocative. After weighing a person’s “right … ‘to be let alone’ [against] the right of others to communicate,” the Court ruled that a vendor has no right to send unwanted material to the home of another. Crucial to the Court’s holding was the absoluteness and finality of the homeowner’s decision; the government had no role in determining whether the materials were objectionable.

We find Rowan distinguishable. First, we note the absence of a statute like the one in Rowan. The statute in Rowan gave the homeowner absolute and final discretion over what was objectionable. Under the statute, the government merely enforced the homeowner’s preference and had no part in deciding what was objectionable. In the present case, the discretion is left to the prosecutor whether to charge Drahota with breach of the peace. This element of government action undermines the State’s Rowan-based argument.

Because the State is an actor here, our concern is not focused on balancing Avery’s right to be let alone against Drahota’s right to communicate. But even if it were, the scales would tip in Drahota’s favor. First, Rowan dealt with commercial speech aimed at private citizens. In contrast, this case deals with political speech directed at a candidate for public office. Second, the discussion of political issues is not the equivalent of mass advertisements in balancing free speech against privacy. “‘The First Amendment affords the broadest protection to such political expression in order “to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” …’” The ability of a constituent to voice his concerns and opinions to his elected representatives, and to those who wish to become his representatives, is the cornerstone of republican government. We reject the State’s contention that Drahota’s mere sending of an e-mail constituted a breach of the peace because Avery had previously asked Drahota not to communicate again.

But that does not mean a person’s right to speak will always trump another’s right to be let alone. While Avery, as a political candidate, had diminished privacy rights trumped by a potential constituent’s First Amendment rights, we recognize that balancing free speech rights against the privacy rights of a private citizen may yield a different result.

Obviously, Drahota is not a wordsmith, and his bumper sticker rhetoric was certainly provocative. But it did not rise to the level of fighting words under these facts. If the First Amendment protects anything, it protects political speech and the right to disagree.

Here, Drahota and Avery had an ongoing, bareknuckle political dialog that germinated in a political science course at the University of Nebraska. Avery, to his credit, permitted the university forum to be a marketplace for the free flow of ideas. But Drahota stopped their dialog upon Avery’s request and did not e-mail Avery again until Avery was running for political office.

In closing, the hallmark of free speech protection is to allow the “‘free trade in ideas’ — even ideas that the overwhelming majority of people might find distasteful or discomforting.” To criminalize Drahota’s speech would impede the free flow of those ideas and political discussion between the people and their representatives. This we refuse to do.


We conclude that the State cannot criminalize speech under the fighting words exception solely because it inflicts emotional injury, annoys, offends, or angers another person. And we reject the State’s argument that the First Amendment does not protect Drahota’s speech because it constituted an invasion of Avery’s privacy. The State does not contend that any other exception applies. Because no exception applies, the First Amendment protects Drahota’s speech. We reverse his conviction and remand the cause to the Court of Appeals with directions to the district court for further remand to the county court for dismissal.

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