I can’t answer, I don’t know the law well enough.
However, this might raise some interesting possibilities, in the area of spam email. I can see where it might put some teeth into a “Don’t send me your spam anymore” request/demand.
I think so. We do something similar with vexatious litigants, after all, even though access to the courts is a fundamental right. I don’t think anyone would deny that the language was abusive, and the fact that this behavior began before his election (perhaps even before his candidacy?) assuages most worries that he is being frozen out of the political process of lobbying elected officials because of his viewpoints. I’m not prepared to say that the First Amendment right to petition for redress of grievances means each and every elected official must be subjected to any old crank’s tirades.
To my uninformed IANAL mind, the relevant issue here (from the description) is whether the emails were sent to the Senator’s government email or to a personal/semi-personal (i.e. academic) one. In the former case it’s a situation where a citizen is giving his representative a piece of his mind, while the latter has a bully engaging in harassment against someone who’s asked him to stop contact.
The student is also potentially mentally unstable, so I can see why someone would take this into the legal realm. If I were the professor, I’d feel worried for my personal safety if the new emails were to my personal box–it indicates that the stalker has some interest in and knowledge of him beyond the professional/political realm.
OK, so in principle, this kind of sanction is palatable.
But even vexatious litigants must exercise their vexation repeatedly before there is a finding limiting their access to the courts. Typical requirements include multiple cases decided against the litigant in a relatively short period of time, for example.
Here we have two e-mails. If we include the previous, uncharged e-mails, we have three that followed the demand that he stop.
If the SDMB and you and I were all located wholly in Nebraska, could I demand that you never open a Pit thread against me, under the same reasoning? After all, I don’t want to be subjected to your tirades any more than Avery wanted to be subjected to Drahota’s. You may say I should avoid the Pit or the site itself if I wish to avoid your attacks, but then, surely, Avery could have avoided Drahota’s attacks by refusing to open the e-mails. And surely the Pit has seen stronger attacks directed at people than the attacks contained in Drahota’s e-mails.
Well, not so much since “pussification.” 
Drahota’s brief makes this point: The “fighting words” exception to First Amendment protection consists of words that are likely to “provoke immediate violence.”
Therefore, while face-to-face insults may qualify as “fighting words,” e-mails sent to someone who is far away—and who thus cannot start an immediate fight with the sender—cannot be fighting words.
I think it has to be more than insults, or we’d ALL be in jail. We’ve all insulted someone, or said “I oughtta kick your ass” or something. I hope the laws are not THAT inclusive, or we’re all in trouble.
I guess the short answer is either (1) one-to-many speech is considered to have more First Amendment value, and thus protection, than one-to-one speech, particular one-to-one speech designed to annoy [this seems to be Professor Volokh’s analysis], or (2) more prosaically, the owner of private communication receptacles, like one’s own telephone line or email in-box, is permitted to exclude whatever messages she likes. Myself, I prefer prosaic accounts to ethereal ones when limiting the reach of the First Amendment, so I’m inclined to go with (2), but I guess both shed some light on the topic.
As readers of Professor Volokh’s blog know (the highly esteemed constitutional law scholar who represents Drahota pro bono), there are analogs to the case at bar in our recent jurisprudence. One case in particular is United States v. Popa, 187 F.3d 672 (D.C. Cir. 1999). Popa made seven anonymous and racially-charged phone calls to then U.S. Attorney for the District of Columbia Eric Holder—phone calls which violated a federal anti-telephone-harassment law that outlawed anonymous calls made with the intent to annoy their recipients. Popa also alleged that the phone calls, critical as they were of public official, were also political speech.
The D.C. Circuit ruled for Popa, applying intermediate scrutiny for content-neutral regulations (advancement of an important government interest by means of a restriction narrowly tailored to that purpose), and finding that the statute in question could have as effectively advanced the interest in preventing telephone harassment while excluding callers engaged in political discourse.
We are not told the particular facts of what number or what office was called in Popa. I think it’s fair to suggest that a Perry forum analysis could be applied if Popa called a conventionally non-public-facing officer of the U.S. Attorney’s Office (say, an accounting manager there) or Eric Holder’s home phone number. Surely, Popa does not stand for your (the impersonal “your”) right to call me up seven times to kvetch about politics.
So, I think there are two dichotomies to be mindful of in your Pit=breach of the peace hypo. First, we have one-to-one communications into a private receptacle versus one-to-many communications on a public soapbox. (But ask, what if instead of pitting, it was a torrent of nasty PMs?). Second, we have the First Amendment right to free speech versus the First Amendment right to petition for redress. It was this latter right that seemed to be the motive force of Popa, and that right is not present when dealing with mere candidates, who are not (yet) agents of the government and thus should not be obligated to receive contumacious “petitions.”
One final wrinkle I want to raise is that there is some worry over whether the judicial should be able to command how members of the other two branches respond to such abusive petitions. I would also keep in mind, the judiciary has very exacting standards it expects petitions made to the courts to meet, and Orly Taitz owes $20K for her most recent supplication to the District Court.
Win.
Under the statutes Bricker was kind enough to relate, nearly every single other human being I encounter every day could be charged with disturbing the peace.
The law as written is ridiculous.
The State’s brief before the Appellate Court
The email sender’s brief before the Supreme Court of Nebraska.
The oral arguments before the Nebraska Supreme Court (you need to move the video through the irrelevant arguments, especially if you don’t want to hear some overdetailed information about what constitutes “sexual conduct” in Nebraska.
Why Bricker found it necessary to hide the documents in the case and all these things from posters is beyond me. Well, it would be beyond me if I thought that Bricker was interested in actual debate about the case rather than trying to exploit posters’ ignorance of the case.
Now you just disturbed my peace!!! Citizen’s arrest. CITIZENS’ ARREST!!!
I know; right?
That guy in the Express Lane with more than 10 items? Breach of peace.
That driver who cut you off and flipped you a bird? Breach of peace.
That lady who holds up the checkout line while she writes a check? Breach of peace.
The screaming baby who won’t shut up in a restaurant? GUILTY!
Srsly, I need my own personal cop to follow me around arresting people if this is how the law is written.
I thought that people would like to talk about the general principles, and not be held to nitpicky legal exactitude.
“[F]or the purpose of determining whether a state statute is too vague and indefinite to constitute valid legislation we must take the statute as though it read precisely as the highest court of the State has interpreted it.” City of Chicago v. Morales, 527 U.S. 41, 68 (1999) (O’Connor, J., concurring) (internal citations omitted).
The law as written in the statute-book is just a sliver of what the law is.
So, if someone writes a screed in the BBQ Pit that upsets another poster(s), can they be charged with breach of peace?
I’m sorry, but I’m not sure what you’re trying to convey here. I’m just a simple snowboarder, remember.
If you were to challenge the law in federal court for unconstitutional vagueness, the court would take the law to be the statute, as construed–and limited–by the highest court of the state. So while the breach of the peace statue may look very wide-ranging, it has probably been hemmed in by a number of Nebraska Supreme Court opinions. And if these opinions appropriately pare back the scope of the statute, then, despite what appears in the statute-book, the courts will not invalidate it.
Ah, okay. Thanks for the clarification; I actually thought it was possible you were suggesting that the law could be more more far-reaching than it reads. I’m glad I asked.
I checked on the statute here in the great state of Nevada:
It’s pretty vague as written, but seems superficially similar to others quoted in this thread.
It really does seem like a catch-all statute to me. Basically, anything one person does that upsets another person is a crime; am I reading that correctly?
One the Court didn’t care for authorized the arrest of “vagrants” defined as the following:
In this same case, the Court recounted the following facts:
- This is the greatest thing I have ever read in a Supreme Court opinion.