Engage in political speech and be convicted of a crime?

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That’s what happened to a University of Nebraska student in 2006. The student, whose case is now on appeal to the Nebraska Supreme Court, was convicted of breach of the peace after he wrote some rather…er, “harsh” emails to his professor (who was also running for the Nebraska legislature). While I do not agree with the student’s tone, lack of manners, and approach to discussing issues with his professor, UCLA Professor Eugene Volokh (his attorney) is right that the student’s speech is constitutionally protected nevertheless.  Here is a snippet from Volokh’s brief to the Nebraska Supreme Court:

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.

Volokh’s remarks reminds me of the California State University System’s former requirement that students “be civil” on campus. A federal court struck down that requirement as unconstitutional in 2007 in a case handled by the ADF Center for Academic Freedom.

It is interesting that the professor went to the police instead of campus administrators to stop the student’s speech.  Some universities, like James Madison University, believe that no matter where a student speaks, whether off-campus or on, they can regulate the speech.  But University of Nebraska has a green light rating in FIRE’s speech code database, meaning that their student conduct policies comply with the First Amendment. 

So the professor went to the police, the student admitted sending the emails, the student was charged with breach of the peace, and a judge ultimately found him guilty and fined him $250.  On appeal, the Nebraska Supreme Court will determine whether the trial court went too far in punishing the student’s political speech.

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