Bravo.
And yet, the country manages to carry on bravely despite this impediment, and the only person who suffers… deserved it.
If there is no injustice in this case, then I’m not going to lie awake fretting about how outrageous this law is. As you know, slippery slopes are simply there for us to snowboard on.
Perhaps an injustice has been done: before I start worrying about that I’ll need to see more information, perhaps waiting for the outcome of the appeal.
Moving on to more important matters… lunch!
… he said, with tongue firmly in cheek …
I’m still waiting for Bricker to pounce with “See? You liberals just want to ban speech you disagree with! Why do you hate the Constitution?”
Is it really all that common for a law to be written along the lines of “Disturbing the peace is defined as disturbing the peace”?
The whole issue up for debate is whether or not emails can “disturb the peace”. It’s silly not to give them the statute that defines “disturbing the peace”. Or even the quote from the Supreme Court that the appellate court relied on: “‘Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.’” To do what you did strikes me simply as “let’s see who can track down and figure out what I’m really asking”.
People who want to debate the statute can certainly do so. I didn’t provide it because it seemed to me that there might be a general interest in discussing whether the law should extend to emails – regardless of whether the Constitution is offended. I didn’t ask if the law is constitutional – I asked if e-mails can disturb the peace. That question can be discussed with specific reference to the statutory language and caselaw, or it can be discussed in a broader, less rigorous sense, can it not?
I don’t think it can. The phrase “disturbing the peace” is purely statutory. It has no broader, tangible, legal meaning which can be divorced from specific statutory language. You can’t know if X violates a statute without knowing what the statute says.
Please. Yes emails certainly can disturb someone’s peace. Great. There we go. Without a legal definition, we wrapped that one up in a second.
But that’s not a debate. What the debate is, as you say is whether the law should extend to emails. And giving people an idea what “the law” is is the first step to honestly debate whether or not it should extend to emails. To do otherwise simply smacks of the same old tired law professor ego stroke.
ISTM that Bricker is simply asking if it should be illegal to send obnoxious emails to others since he posted it in GD and not GQ. I would answer that question with a resounding no. My explicit right to freedom of speech should trump your implied right to peace.
On the other hand, there is a saying:
“Your freedom to extend your arm, ends at the tip of my nose”
or something like that. There is a difference between free speech and deliberate harrassment and abuse. The HARD part is knowing where to draw the line sometimes.
This is probably a hijack, but –
I wonder if, after the election, the student became one of the professor’s constituents? In such a case, would the professor have any right to tell a constituent to stop communicating with their elected official? And citizens have an abolute right to “petition” the government, which might reasonably include emails to their representatives.
Its ok because the student is conservative.
OK. I don’t agree, but the point is moot and the statute at issue has now been provided for all to see, so the debate can certainly continue with this information.
Now is the answer still an unqualified, absolute ‘yes?’ The two e-mails found to be criminal were sent while Avery was a candidate for office, a campaign that was ultimately successful. Is there any sense whatsoever that Avery’s right to be free of rude, vexatious, e-mails is outweighed by any other concerns?
One of the amici briefs is from “Current and Former Elected Officials.” The officials, who have all held or still hold elected positions, argue that regardless of the constitutional claims, there are strong public policy reasons to reverse this conviction:
After providing a sample of an invective-filled e-mail received by one of the amicus briefers, the brief comments:
Is there anything persuasive in that reasoning?
Good lord, are so many people so afraid of a “gotcha” question that you fear your position on this issue cannot be adequately defended when compared to your possible position on another, unknown scenario involving different facts? Enough with the hand-wringing over whether the OP has an agenda, already!
I don’t think so. The law doesn’t seem to focus on someone being offended as the defining element of the crime, it focuses on the conduct of the person charged. If I went around banging pots and pans in my neighborhood at 3am, but everyone just laughed it off as “there goes Ravenman again!” I still think a cop could arrest me for being loud, obstreperous, and disruptive.
Anyway, to the case: tough call. I don’t have a problem in theory with using this statute to prosecute harassing behavior. However, I’m not sure whether the defendant’s behavior crosses the line from “annoying” into “harassment.”
I’m also struggling with whether an elected official deserves any less protection from harassment than any private citizen. On one hand, harassment isn’t free speech, and taking on an office shouldn’t mean that one must offer himself up for any abuse a person may wish to fling. On the other hand, the public should be allowed some more tolerance in communications with their government on issues that may become heated.
All in all, I’m leaning toward this being more of a civil matter between the professor and his student, rather than a criminal matter. If the professor was that disturbed by the student’s emails, I think he ought to have pursued a restraining order, rather than calling the cops.
This is somewhat the position that the state staked out at oral argument in front of the state supreme court – what was being criminalized, they said, was conduct, not speech. It wasn’t the content of the e-mails, it was the sending of them in a harrassing manner, much like calling someone repeatedly. It’s not what you sya when you answer the phone; it’s causing their phone to ring that constitutes the crime.
But we do have noise restrictions that cover 3am, so that’s a separate issue.
I don’t see how you could be charged with disturbing the peace for banging pots together at 3pm if no one stepped forward to say that their peace was disturbed.
And Bricker’s post #94 makes me think my interpretation is correct, too.
Had Bricker started the thread with his post above yours, there wouldn’t have been a problem whatsoever. But he didn’t, so there you have it.
Within one sentence after your admonishment, you refer to the statute in question. That’s the point I was making. It’s silly to play hide and seek with the facts and to make people dig to find this stuff. In your very first sentence, you use the very statute as a reference point, which is why I called Bricker’s hiding of it silly.
I think this is close to the typical definition (both statutory and common sense) of disturbing the peace; disturbing the public peace. But the emails don’t fit that traditional/common use of the term (personally, I don’t find the State’s argument that what was in the emails didn’t matter, just sending them was enough), they deal more with disturbing an individuals peace.
What is made illegal (lets call it “harassment”) and what isn’t (annoying), in large part depends on the definition of harassment and whether the actions fit that definition.
Some states have that term defined (for example, in Iowa, Harassment is defined (in relevant part) as "a. A person commits harassment when, with intent to intimidate, annoy, or alarm another person, the person does any of the following:
(1) Communicates with another by telephone, telegraph, writing, or via electronic communication without legitimate purpose and in a manner likely to cause the other person annoyance or harm."
In Nebraska, they have a statute called Stalking which criminalizes actions that “engage in a knowing and willful course of conduct directed at a specific person which seriously terrifies, threatens, or intimidates the person and which serves no legitimate purpose”.
I have no problem with either of those. If it is harassment, it can be made criminal without offending the Constitution, or to my mind, personal freedoms. Even if it is made to a politician. This case is odd because there wasn’t an allegation of an “willful course of conduct”, but rather just two emails were charged. I’m assuming that’s why the prosecutor chose to file under the “disturbing the peace” statute. I couldn’t find any other statute in NE that would constitute harassment for one or two emails. So I think there is a statutory solution for the legislature, simply make harassment illegal rather than have it under disturbing the peace.
I agree, letting the professor sue, get money and a restraining order, is the preferrable outcome, but oftentimes it isn’t enough. So having criminal sanctions available is recommended.
Sorry, which jail time was that again?
Well, that’s clear enough, I guess. What’s got me scratching my head is the use of the disturbing the peace statute to address it. Is “harrassment” a civil tort in Nebraska, rather than a criminal tort? And if so, was there some particular reason the issue had to be pursued as a criminal, rather than a civil matter?
In my long post above yours I said: “This case is odd because there wasn’t an allegation of an “willful course of conduct”, but rather just two emails were charged. I’m assuming that’s why the prosecutor chose to file under the “disturbing the peace” statute. I couldn’t find any other statute in NE that would constitute harassment for one or two emails. So I think there is a statutory solution for the legislature, simply make harassment illegal rather than have it under disturbing the peace.” I’m guessing, but since Nebraska law requires a “course of conduct” the 2 charged emails don’t fit the bill, so they went with disturbing the peace.
I don’t think it had to be done only as a criminal charge, just that it was in this case.
I could have responded to Bo’s question as the last part of my response, but his was an interesting question that went without response. In no way are those comments integral to the principles of the issue at hand. The principal of whether or not the peace can be disturbed through electronic message isn’t defined by what the law says. I note that the OP seems to have been criticized lately for relying too much on what the law or some court has said about a particular situation; now he starts an interesting topic by mostly avoiding the intricacies of the law and instead talking about the general principles involved, and people think it is a trap. I guess some people can never win.
Right, but let’s not get overly fixated on whether a particular state has, in fact, specifically outlawed certain actions based on how they have defined harassment. I think the more interesting question is whether sending insulting emails ought to be considered a criminal offense, and why or why not.
As I was thinking about this, it seems to be the most practical reason to make a criminal offense of disturbing the peace is to allow the police to step in and stop the disturbance in order to restore the peace. So if I’m banging pots and pans at 3am, the fact that my neighbors could, if inclined, sue my pants off isn’t a very good remedy if they have to wait for weeks or months for the civil case to be heard by a judge. Instead, they can call the cops and get me thrown in the pokey so they can get a night’s rest.
In this particular case, there appears to be no sense of urgency. The emails had stopped for four months, and in any case, the contended offense of receiving emails amounts to nothing more than having a note appear in one’s inbox. It is trivially easy to ignore an email or two.
The more I think about it, the more I’m leaning toward thinking that in this case, sending a handful of hot-headed emails to one’s (former?) professor ought to be a criminal offense.
Maybe I’m missing something, because if you are subscribing to the prosecution’s interpretation of disruptive behavior, then the DA is saying the exact opposite of what you are: that the acts themselves are what violate the law, and the degree to which someone was offended isn’t really relevant.
To use an another example, if I walk down the street and the crazy ol’ cat lady is offended and vexed by that, I haven’t disturbed her peace. That’s because what I did wasn’t obstreperous, regardless of how worked up she gets. My actions are judged on their own, and the feelings of the “victims” aren’t really considered.