FIRE Files Amicus Brief in Important ‘Breach of the Peace’ Case

By November 20, 2009

Earlier this week, FIRE filed an amicus brief with the Nebraska Supreme Court in an important First Amendment case involving political e-mails sent by a student to his university professor. FIRE wrote the brief on behalf of Darren Drahota, a University of Nebraska student who was criminally convicted of disturbing the peace based on two anonymous e-mails sent to his political science professor, current Nebraska state senator Bill Avery. You can read an article in the Lincoln Journal Star about the case here.

In a decision that would pose a clear threat to First Amendment rights if allowed to stand, the Nebraska Court of Appeals found Drahota guilty under a state statute because his e-mails harshly criticized Avery’s political opinions and questioned his patriotism. However, in spite of the many rationales the Court of Appeals offered to justify its decision, Drahota’s e-mails constituted protected speech, as FIRE’s amicus brief argues strongly.

The Nebraska Supreme Court agreed to hear Drahota’s case after Eugene Volokh, Drahota’s pro bono attorney and professor at UCLA Law School, petitioned Nebraska’s highest court for review. (FIRE also filed an amicus brief in support of Volokh’s petition.) Volokh is a noted legal blogger and has written about the case on his blog, The Volokh Conspiracy. According to Volokh, the Nebraska Court of Appeals’ decision appears to be the first published opinion permitting criminal punishment for nonthreatening but insulting speech of a political nature to an elected official or candidate for office.

In FIRE’s brief, we argue that, if allowed to stand, Drahota’s conviction would chill core political speech:

The Court of Appeals, in holding that the two e-mails sent from an anonymous e-mail address constitute a breach of the peace, reasoned that the communication contained in the e-mails "hardly represents civil discourse or debate." State v. Drahota, 17 Neb. App. 678, 685 (June 16, 2009). It held that speech may be proscribed, consistent with the First Amendment, if it is lewd, profane, or insulting. Under these standards, if a citizen of Nebraska makes any contested political statement in a pointed or shocking fashion in an e-mail or letter, she may be subjecting herself to criminal punishment by unknowingly stepping outside of the state’s unreasonable definition of "civil discourse."

Moreover, the Court of Appeals’ ruling would further embolden college administrators to censor constitutionally protected speech:

Criminalizing merely offensive, unwanted, unpleasant, or uncivil speech, as the lower court’s opinion does, would imperil the ideal of the American public university as the "marketplace of ideas." If the lower court’s opinion is allowed to stand, university administrators will be empowered to silence speech by resorting to criminal sanctions against students, despite the fact that the vast majority of unpleasant speech is entirely protected by the First Amendment.

Volokh filed the main brief for Drahota with the Nebraska Supreme Court earlier this month. In a surprising move, the Nebraska Attorney General’s office has opted not to file a response brief. FIRE’s amicus brief adds the unique perspective and skepticism of university censorship developed over ten years of FIRE’s experience. We hope that these briefs persuade the Nebraska Supreme Court to protect the First Amendment principles at stake in this case.

Schools: University of Nebraska – Lincoln