An important First Amendment case in which a University of Nebraska student was found guilty of breaching the peace for two anonymous e-mails he sent to his college professor went to oral argument this week before the Nebraska Supreme Court. As Torch readers may recall, FIRE submitted an amicus (friend-of-the-court) brief in the case, in which student Darren Drahota criticized the political views of his professor and questioned his patriotism. The case has generated a significant amount of local press coverage in the past week, including in the Lincoln Journal-Star, Omaha World-Herald, and Lexington Clipper-Herald, and on Nebraska.TV. (Nebraska also videotapes arguments before its supreme court, so you can watch it in full here, starting at about 39 minutes in.)
Drahota's case originated with political disagreements between himself and his political science professor, Bill Avery, who at the time was a candidate for the state legislature (and who is currently a state senator). The two first shared their views over a prolonged e-mail exchange, after which Avery expressed that he no longer wished to continue the conversation. In two subsequent e-mails sent by Drahota from the anonymous address firstname.lastname@example.org, one of which contained the subject line "traitor," Drahota criticized his professor's political views, questioned his loyalty to the country, and used profanity-laced language. That was the extent of his actions. However, Avery decided to alert the police to the e-mails, and Drahota was charged with disturbing the peace under local law. The case resulted in a conviction that was upheld on appeal by the Nebraska Court of Appeals.
Following the failed appeal, Eugene Volokh, professor of law at UCLA Law School and renowned legal blogger, decided to take on Drahota's case pro bono. He petitioned the Nebraska Supreme Court for review, and the state's highest court decided to hear the case. Volokh has said that Drahota's case 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." Indeed, the Court of Appeals relied on a number of faulty grounds to uphold Drahota's conviction, including that he used a libelous e-mail address (impossible, as FIRE's amicus brief argues, since the e-mail address was communicated only to Avery and did not reach a third party, as is required under the law of libel).
The World-Herald article sheds some light as to where the Court of Appeals could have picked up its faulty premises:
Assistant Attorney General George R. Love, in a brief to the Court of Appeals, said: "The e-mails sent by Drahota were meant to anger and incite Avery and often contained profane, indecent and abusive remarks."
"In no sense is that type of language protected speech," Love wrote.
Wrong. Decades of First Amendment jurisprudence, including Supreme Court precedents, have established that "profane, indecent and abusive remarks" (and more) are entitled to constitutional protection. For example, in Gooding v. Wilson, 405 U.S. 518 (1972), the United States Supreme Court made clear that speech that is "vulgar or offensive...is protected by the First and Fourteenth Amendments." In Terminiello v. Chicago, 337 U.S. 1 (1949), the Court famously declared:
[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.
Thus, the Court of Appeals' decision, if allowed to stand, would fly in the face of well-established First Amendment case law.
Happily, there is reason to be optimistic that the Nebraska Supreme Court will overturn Drahota's conviction and uphold the free speech principles at stake. The Journal-Star describes this week's oral arguments as follows:
Supreme Court judges weighed in often as Volokh and George Love of the Nebraska Attorney General's Office presented their arguments.
"Isn't e-mail or voicemail that you can walk away from different than following someone down the street?" asked Judge John Gerrard.
"Can't you delete e-mail without even looking at it?" asked [Judge John] Wright.
"People do that all the time," responded Volokh, getting a laugh from judges and observers.
But Love argued Drahota changed the e-mail address from which he wrote, so Avery wouldn't have known who the message was from.
He also argued Avery has a right to be left alone.
Does he? the judges asked.
"Can a public official do that? Say I want no more contact" asked Chief Justice Mike Heavican.
Tough questions, indeed. It sounds as though Assistant Attorney General Love and the state of Nebraska are having a hard time trying to persuade the state's highest court that Drahota's conviction should stand. And they should be having a hard time-if the Court of Appeals' decision is allowed to stand, it would pose a grave threat to First Amendment principles. We hope that the Nebraska Supreme Court gets it right, and we will of course update readers on the progress of this case.