Posted by Eugene Volokh:
What I've Been Doing on My Summer Vacation:
http://volokh.com/archives/archive_2009_07_12-2009_07_18.shtml#1247597191
I'm glad to say I have an interesting pro bono case -- a petition for
further review by the Nebraska Supreme Court in [1]State v. Drahota
(Neb. Ct. App. June 16). Here's the petition, 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.
Facts
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 consider this email a request that you not
contact me again for the purpose of spilling more vile [sic].� Drahota
responded with an apology.
Four months later, Drahota sent two more e-mails to Avery, this time
from the address �averylovesalqu...@yahoo.com.� In the first, Drahota
wrote concerning the death of an Iraqi terrorist, and asked Avery:
�Does that make you sad that the al-queda leader in Iraq will not be
around to behead people and undermine our efforts in Iraq? . . . You .
. . and the ACLU should have a token funeral to say goodbye to a dear
friend of your anti-american sentiments.� The second had the subject
line �traitor,� and read, in relevant part,
I have a friend in Iraq that I told all about you and he referred
to you as a Benedict Arnold. I told him that fit you very well. . .
. I�d like to puke all over you. People like you should be forced
out of this country. Hey, I have a great idea!!!! . . . Let�s do
nothing to Iran, let them get nukes, and then let them bomb U.S.
cities and after that, we will just keep turning the other cheek.
Remember that Libs like yourself are the lowest form of life on
this planet[.]
After a bench trial, Drahota was convicted of breach of the peace. The
Court of Appeals affirmed the conviction, based solely on the last two
e-mails. 17 Neb. App. at 685, 687.
Argument
I. The Importance Of This Constitutional Precedent Warrants Review By
This Court
The decision below sets an important precedent, in Nebraska and
elsewhere, that sharply limits the constitutional protection for
political speech. It 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. Prosecutors throughout Nebraska and the country will now be
more likely to conclude that such speech could indeed lead to a
prosecution. And citizens throughout the country will now be rightly
concerned that their critical e-mails to government officials and
political candidates will lead to criminal prosecution if a prosecutor
concludes the e-mails contain �epithets� (even clearly political ones
such as �traitor�) or �personal abuse.�
([2]Show the rest of the brief.)
It is thus important for this Court to review the case,
notwithstanding Drahota�s labeling his assignments of error in his pro
se appellate brief as �issues� instead of �assignments of error.� 17
Neb. App. at 683. Drahota�s briefing was incorrect on this score.
Nonetheless, he supported his claims with detailed argument. The
state�s brief did not claim any waiver on Drahota�s part. The opinion
below dealt fully with his arguments. And while the Court of Appeals
stated it was reviewing the case for plain error, Id. at 684, it
concluded there was no error at all.
The precedential force of the decision below is thus not limited to
plain error cases. Because of this, reviewing the constitutional issue
�is necessary to a reasonable and sensible disposition of the issues
presented,� State v. Conover, 270 Neb. 446, 449, 703 N.W.2d 898, 902
(2005), both in this case and for the benefit of future speakers who
might be deterred by the precedent set below. See, e.g., Linn v. Linn,
205 Neb. 218, 221, 286 N.W.2d 765, 767 (1980) (reviewing
constitutional question in ��the interests of substantial justice,��
though the issue had not even been raised below (quoting Wittwer v.
Dorland, 198 Neb. 361, 253 N.W.2d 26 (1977))).
II. The First Amendment, And A Proper Understanding Of Breach Of The
Peace Law, Bar Punishing Drahota�s E-Mails As �Breach Of The Peace�
The decision below is not only important but mistaken, both as to what
constitutes �breach of the peace� and as to what the First Amendment
protects. It is therefore likely to be confusing to lower courts, as
well as likely to improperly deter constitutionally protected speech.
The e-mails in this case do not fit within any exception to First
Amendment protection, nor are they like the speech that this Court has
treated as a breach of the peace in the past. The e-mails do not
contain �true threats� of illegal conduct; the opinion below did not
suggest that the e-mails were threatening. Nor are they libelous,
despite the assertion by the opinion below that the e-mail address
from which they were sent (�averylovesalqu...@yahoo.com�) was
�libelous,� 17 Neb. App. at 685, and despite the use of the word
�traitor.� First, there can be no libel ��when the words are
communicated only to the person defamed.�� Molt v. Lindsay Mfg. Co.,
248 Neb. 81, 91, 532 N.W.2d 11, 18 (1995). Second, in context
Drahota�s �allegation� was a hyperbolic statement of opinion, not a
statement of fact. See Letter Carriers v. Austin, 418 U.S. 264, 284,
286 (1974) (noting that �traitor� can be used not as a
�representation[] of fact� but �in a loose, figurative sense�);
Wheeler v. Neb. State Bar Ass�n, 244 Neb. 786, 792, 508 N.W.2d 917,
922 (1993) (endorsing the Letter Carriers analysis).
A. The E-Mails In This Case Are Not �Fighting Words�
The rationale of the decision below is unclear, but the decision could
be read as holding that the e-mails constituted �fighting words.� Such
a holding would set an unsound precedent that should be corrected. The
fighting-words exception consists of words that are so insulting that
they are �inherently likely to provoke violent reaction.� Virginia v.
Black, 538 U.S. 343, 359 (2003); Cohen v. California, 403 U.S. 15, 20
(1971); see also, e.g., Buffkins v. City of Omaha, 922 F.2d 465, 472
(8th Cir. 1990); Knight Riders v. City of Cincinnati, 72 F.3d 43, 46
(6th Cir. 1993). While face-to-face insults may therefore qualify as
�fighting words,� e-mails sent to someone who is far away -- and who
thus cannot start an immediate fight with the sender -- do not
qualify. See State v. Fratzke, 446 N.W.2d 781, 785 (Iowa 1989)
(concluding that defendant�s letter did not �tend to inflict injury or
an immediate breach of the peace,� partly because �words contained in
a letter� were �a mode of expression far removed from a heated,
face-to-face exchange�); Tollett v. United States, 485 F.2d 1087, 1095
(8th Cir. 1973) (rejecting a fighting-words-like justification for a
criminal libel law that covered mailed postcards, on the grounds that
a �printed defamatory statement sent through the mails and not made
face-to-face lends itself only to the remotest concern of persons
resorting to violence �in defense of their honor��); see also Layshock
v. Hermitage School Dist., 496 F. Supp. 2d 587, 602 (W.D. Pa. 2007)
(�A �MySpace� internet page is not outside of the protections of the
First Amendment under the fighting words doctrine because there is
simply no in-person confrontation in cyberspace such that physical
violence is likely to be instigated.�); Neudecker v. Shakopee Police
Dep�t, 2008 WL 4151838, *8 (D. Minn. 2008) (concluding that even a
�grossly offensive� letter didn�t constitute �fighting words� and
therefore couldn�t constitute �disorderly conduct,� because �it was
not likely to provoke a violent reaction or incite an immediate breach
of the peace�).
Moreover, all of this Court�s cases that uphold convictions on
fighting-words grounds have been fully consistent with this First
Amendment principle: They have all involved speech capable of inciting
an immediate fight, such as speech in a �face-to-face confrontation,�
State v. Boss, 195 Neb. 467, 471, 238 N.W.2d 639, 643 (1976); see also
State v. Groves, 219 Neb. 382, 384, 363 N.W.2d 507, 509 (1985); State
v. Dreifurst, 204 Neb. 378, 379, 282 N.W.2d 51, 52 (1979), or speech
from �across the street,� State v. Broadstone, 233 Neb. 595, 597, 447
N.W.2d 30, 32 (1989).
B. The E-Mails In This Case Cannot Be Punished On The Grounds That
They �By [Their] Very Utterance Inflict Injury�
Alternatively, the court below might have concluded that speech is
unprotected when it is not �civil discourse or debate,� 17 Neb. App.
at 685, and contains �insulting . . . words,� which �by their very
utterance inflict injury,� Id. at 686 (quoting Chaplinsky v. New
Hampshire, 315 U.S. 568 (1942)). Under this theory, merely being
insulted would be an �injury� that may lead to prosecution of the
speaker, even if the speech does not �tend to incite an immediate
breach of the peace,� Id.
Yet no previous Nebraska precedent has found a �breach of the peace�
where speech was merely insulting, rather than threatening or likely
to provoke a fight. And such an application of the law would conflict
with U.S. Supreme Court precedent: Whatever the �by their very
utterance inflict injury� prong of Chaplinsky might mean, it cannot
refer to the �injury� of feeling insulted.
Speech about public figures (such as political candidates, see Hoch v.
Prokop, 244 Neb. 443, 446, 507 N.W.2d 626, 629 (1993)), retains First
Amendment protection even if it is not merely uncivil but
�outrageous[],� �patently offensive[,] and . . . intended to inflict
emotional injury.� Hustler Magazine v. Falwell, 485 U.S. 46, 47
(1988). Liability cannot be based on the �adverse emotional impact� of
the speech. Id. at 55. As Hustler holds, even �repugnant� �vehement�
and �caustic� insults of public figures, Id. at 50-51 -- in that case,
a scurrilous, deeply insulting, and nonsubstantive attack -- are
constitutionally protected. See also State v. McKee, 253 Neb. 100,
106, 568 N.W.2d 559, 564 (1997) (�The 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.��� (quoting Madsen v.
Women�s Health Ctr., Inc., 512 U.S. 753 (1994))).
If anything, an attack distributed to millions, as in Hustler,
inflicts more emotional distress and is a greater insult than two
private e-mails. Likewise, the satirical discussion in Hustler of a
noted clergyman�s supposedly having drunken sex with his mother in an
outhouse, 485 U.S. at 48, is likely more insulting than the
politically based insults at issue here. Nonetheless, Hustler made
clear that Chaplinsky does not strip such uncivil speech of
constitutional protection. 485 U.S. at 56.
This is why the Seventh Circuit has expressly held that
[a]lthough the �inflict-injury� alternative in Chaplinsky�s
definition of fighting words has never been expressly overruled,
the Supreme Court has never held that the government may,
consistent with the First Amendment, regulate or punish speech that
causes emotional injury but does not have a tendency to provoke an
immediate breach of the peace.
Purtell v. Mason, 527 F.3d 615, 624 (7th Cir. 2008) (concluding that
Halloween lawn decorations mocking neighbors were not �fighting words�
because they did not �inherently tend[] to incite an immediate breach
of the peace,� though they caused �embarrassment, anger resentment,
and for some, fear�). Likewise, United States v. Popa, 187 F.3d 672
(D.C. Cir. 1999), overturned the telephone-harassment conviction of a
person who left not two but seven messages on a public official�s
answering machine, messages that were not just grossly insulting but
racist. The statute there clearly covered such messages; it was not
just a breach-of-the-peace law, which can and should be interpreted as
not covering e-mails such as those here, but a telephone-harassment
statute banning all anonymous calls made �with intent to annoy, abuse,
threaten, or harass.� Id. at 673. Still, the D.C. Circuit expressly
held that the First Amendment prevented the statute from applying to
�public or political discourse,� Id. at 677, including in that case
discourse that contains epithets and insults.
C. Drahota�s Speech May Not Be Punished As �Breach Of The Peace�
Despite Avery�s Request, Four Months Earlier, That Drahota Stop
E-Mailing Him
A final possibility is that the opinion below upheld Drahota�s
conviction because Drahota �knew after February 10 that Avery was
finished with the �discussion� and wanted no more e-mail from him.� 17
Neb. App. at 687. But the opinion does not state that this was a
necessary condition for the court�s decision. A reader trying to find
out what may legally be e-mailed to political candidates in Nebraska
-- or, conceivably, posted about them on a Web site -- could thus
reasonably conclude that harsh and insulting criticism is now criminal
whether or not the target has sent a message asking that the criticism
stop. This is especially so since previous Nebraska
breach-of-the-peace precedents have never distinguished messages sent
after a request to stop from other messages, and since nothing in the
�by their utterance inflict injury� rationale suggests such a
distinction.
And even if this was the rationale of the court below, this rationale
cannot justify this prosecution. First, �[w]hen a candidate enters the
political arena, he or she �must expect that the debate will sometimes
be rough and personal,�� Harte-Hanks Communications, Inc. v.
Connaughton, 491 U.S. 657, 687 (1989). Even intentionally annoying or
abusive telephone messages left for government officials are
constitutionally protected. Popa, 187 F.3d at 677. Likewise, �[a]s
elected representatives of the people, [Members of Congress] cannot
simply shield themselves from undesirable mail in the same manner as
an ordinary addressee,� U.S. Postal Serv. v. Hustler Magazine, Inc.,
630 F. Supp. 867, 871 (D.D.C. 1986), and this principle would apply
equally to candidates for the state legislature.
Second, while a specifically defined statute banning further contact
with someone who has said �stop e-mailing me� might be constitutional,
at least if it excluded government officials, see Id. at 871, the
approach taken by the opinion below is not. In Rowan v. U.S. Post
Office Dep�t, 397 U.S. 728 (1970), the U.S. Supreme Court upheld such
a specific statute that covered ordinary mail, but only because
�[b]oth the absoluteness of the citizen�s right [to stop further
mailings] under [the statute] and its finality are essential.� Id. at
737. �Congress provided this sweeping power not only to protect
privacy but to avoid possible constitutional questions that might
arise from vesting the power to make any discretionary evaluation of
the material in a governmental official.� Id.
The decision below lacked the attributes that Rowan found �essential�:
It engaged in �discretionary evaluation of the material,� concluding
that Drahota�s e-mail was punishable because (among other things) it
�hard¬ly represent[ed] civil discourse or debate,� �impugn[ed]
Avery�s loyalty to the United States,� and supposedly �accused Avery
of the crime of treason.� 17 Neb. App. at 685. Nothing in the opinion
below announces any clear rule giving recipients the �final[],�
�absolute[]� right to prevent further messages, with no need for
�discretionary evaluation� by a government official of the messages�
content or quality. Rather, the opinion at most ambiguously suggests
that senders may be barred from sending some kinds of messages,
perhaps even if the recipient never ordered that they stop, and only
if a judge later concludes the messages contain unfair accusations or
are not �civil.�
And the approach adopted by the opinion below poses a serious danger
of viewpoint discrimination. Just before it found Drahota guilty, the
trial court said, �Let�s be a little bit more tolerant, Mr. Drahota,
of people who you don�t agree with.� If Drahota had expressed
intolerance of people who hold intolerable viewpoints -- rather than
of a mainstream figure such as Professor Avery -- a �toleran[ce]� test
(apparently used by the trial court) or �civil[ity]� test (apparently
used by the Court of Appeals) might have come out in Drahota�s favor.
Judgments about an argument�s civility are often influenced by how
sound it seems; even harsh insults may be treated as being within the
bounds of civility when aimed at people whom the observer sees as
meriting harsh condemnation.
This is partly why the U.S. Supreme Court has rejected imposing even
civil liability on �outrageous� speech -- ��[o]utrageousness� in the
area of political and social discourse has an inherent subjectiveness
about it which would allow a jury to impose liability on the basis of
the jurors� tastes or views,� Hustler, 485 U.S. at 55. Imposing
criminal liability for speech on the grounds that it is not �civil
discourse or debate� or is not sufficiently �tolerant� is similarly
unconstitutional.
In that respect, this case is much like Cohen v. California, 403 U.S.
15 (1971). In Cohen, a defendant was convicted for disorderly conduct
because he wore a jacket bearing a vulgar word. The defendant wore the
jacket into a courthouse, and the opinion noted that such speech might
be prohibitable by a rule targeted solely to courthouses. Id. at 19;
see also ISKCON v. Lee, 505 U.S. 672, 679 (1992) (holding that speech
in nonpublic fora may be restricted through reasonable
viewpoint-neutral rules). But Cohen nonetheless held that
[a]ny attempt to support this conviction on the ground that the
[disorderly conduct] statute seeks to preserve an appropriately
decorous atmosphere in the courthouse where Cohen was arrested must
fail in the absence of any language in the statute that would have
put appellant on notice that certain kinds of otherwise permissible
speech or conduct would nevertheless, under California law, not be
tolerated in certain places.
403 U.S. at 19. Likewise, any attempt to support Drahota�s conviction
on the ground that breach-of-the-peace law seeks to protect people
from repeated messages sent after they have asked that the messages
stop must fail in the absence of any precedent that would have put
Drahota on notice that certain kinds of otherwise constitutionally
protected messages -- neither threats nor fighting words nor other
unprotected speech -- would be punishable under such circumstances.
Conclusion
For the foregoing reasons, this court should grant further review, and
reverse the Court of Appeals� decision upholding Drahota�s conviction.
([3]Hide most of the brief.)
References
1. http://www.supremecourt.ne.gov/opinions/2009/june/jun16/a08-628.pdf
2. file://localhost/var/www/powerblogs/volokh/posts/1247597191.html
3. file://localhost/var/www/powerblogs/volokh/posts/1247597191.html
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