Either you left out a word, or your argument did a 180 that would leave Tony Hawk gaping. 
As I pointed out, yes a person’s peace can be disturbed through electronic messaging. Maybe I’m missing something, but I haven’t seen anything contesting that. What the issue is whether we want to make it “a criminal act”. Which is why I got into the “harassment” vs. “annoying” issue.
Which is the very reason I made that distinction that apparently you missed. Yes, if it rises to the level of harassment, it should be criminal. If it doesn’t, it shouldn’t. That was kinda my point.
I like to be unpredictable.
Yes, I left out a word. :o
I think I phrased my last point somewhat ambiguously – I only meant to say that the more interesting debate is whether such activity should be criminal, not the nuts and bolts of whether or not that activity may now be illegal in Nebraska due to their statute, but not in West Virginia because of their law, etc.
I suppose it is possible to be disruptive to someone’s life or business by sending electronic messages, yes. But for that to be the case, I would imagine that the emails would actually have to be disruptive, as in creating a situation in which it is difficult to carry on routine actions without being imposed upon.
If we go back five years or so before spam filters got a lot better, I would say that emails about V!@g5a could be disruptive (or harassing, I’m using those terms more or less interchangably) because someone would find 100 emails a day in their inbox. At some point it gets hard to read your normal emails.
But two emails after a four month hiatus? That seems pretty hard to be disruptive, UNLESS…
I can imagine a case in which the content of a small number of emails was so disturbing as to fundamentally affect how someone goes about their business. For example, maybe if the emails had stalker-ish messages about watching the professor’s house, or following the guy around, or something like that.
But again, that didn’t happen in this particular case. Instead, the professor seemed to be incensed at being called an Al Qaeda sympathizer. As insulting as that may be, is calling someone an Al Qaeda sympathizer, especially not face-to-face, a crime?
It looks like Nebraska has a disturbing the peace of a person that is just their phrasology for harrassment. I think it is very clear that this is different than the typical disturbing the peace we are all familiar with.
I should certainly HOPE this is how it works, otherwise Ms Crazy Cat Lady could have you (or any of us) arrested.
But that is what I was debating. If the activity is intended to intimidate, annoy, or alarm another, and, without legitimate purpose, the person does cause intimidation annoyance, or alarm, then it should be illegal.
I agree. Which is why I earlier stated that I wasn’t buying the idea that the emails themselves should constitute the offense, it’s what is in those emails that should constitute the offense.
That is not the whole of what he said. Here are the emails. He called the professor a Benedict Arnold, that he would like to “puke all over” the professor, that people like the professor should be “forced out of the country”, and that libs like the professor were the lowest forms of life. Add in that it was done from a fake email setup to further mock the guy, and it’s harassment, and I don’t have a problem with it being illegal.
So back to the point raised earlier: I would say there have been Pittings that were even more outrageous. Should those posters have been subject to criminal sanction?
Agreed. And this is why I also agree with Hamlet that the OP hid the ball to some extent by framing the question as “Can e-mails disturb the peace?” without providing additional background information about what “disturbing the peace” means in that particular jurisdiction. As I see it, that puts the focus on the narrowest and most context-dependent of the three inquiries that Bricker has arguably put up for debate.
(1) If the issue is whether the content of an e-mail can/should* constitute a criminal act, obviously the answer is yes. An e-mail containing threats against the life of the President clearly can be criminal; ditto for e-mails intended to defraud (e.g., the correspondence of deposed Nigerian princes), e-mails containing malicious and property-destroying viruses, e-mails arranging the commission of a criminal act (if not for the act itself, then certainly for collateral** charges like conspiracy), e-mails divulging secrets of national security, and so on.
(2) If the issue is whether these particular e-mails were criminal in nature, this is something that probably depends on more facts than provided in the OP, but the instinctual answer of lawyers and laypeople alike will probably be (as it has been in this thread) something along the lines of, “Yeah, sure, I can see how e-mails like that would be criminal harassment.” I don’t think that’s a particularly controversial view, but I welcome correction on that point.
(3) But if the issue is “Can e-mails disturb the peace?”, there’s a bit of a cognitive curveball there, because the common conception of “disturbing the peace” is not something that happens over e-mail. In my experience, when most people (again, law degree or not) think of someone disturbing the peace, they imagine something like a rowdy, drunken boor in a public place, or someone repeatedly gunning their motorcycle down a quiet suburban street at two o’clock in the morning. While abusive e-mails might well be criminal, they don’t seem to fit within that particular category of criminal conduct. If the Nebraska courts determined that those e-mails were disturbing the peace, they’re either flat wrong or (far more likely) using a different/broader definition of disturbing the peace than the rest of us. On the information provided in the OP, it’s impossible to tell – which is why the inquiry as posed is unnecessarily confusing.***
I don’t think any of the three inquiries are particularly interesting debate fodder, to be honest, but it’s certainly fair to say that the specific question posed by the OP (“Can e-mails disturb the peace?”) cannot be answered in a vacuum without knowledge of the relevant statute and how it has been applied by Nebraska courts.
*I parse out this distinction bearing in mind Rhythmdvl’s recent Pit thread.
**I’m forgetting the legal term for a criminal charge that can only be brought in conjunction with certain other charges.
***Moreover, it obscures what seems to be both the core of Volokh’s argument on appeal and Bricker’s real question, which is whether the e-mails are protected speech. (Correct me if I’m wrong, Bricker.) This is a perfectly valid and possibly interesting issue, but it’s not remotely what the OP asks.
No, because by joining a public message board on the internet, you open yourself up to those kinds of things, it’s a public forum, where a person’s free speech rights are much more important than being annoyed or offended. When you sign up for a message board, you sign up for the harassment that comes too. But private emails, letters, telephone calls, etc., that are made for the purpose of intimidating and annoying are different. There’s no real free speech issue in calling someone up or emailing them solely to harass them.
It seems like you’re arguing that harassing words in full view of the public are okay, but if the harassing words are made with more discretion then it is a crime. I think that’s pretty much the exact opposite of my gut instinct.
Only from a free speech point of view. The public sphere carries much more a concern of stifling free speech than directed, individual emails or telephone calls. And while messages on a message board could be the basis for a criminal harassment charge, I think the free speech defense is much more likely to defeat the prosecution.
Do you have some cites to back this assertion up? Not challenging you, just seeking further confirmation.
Also, would this extend to, say, standing on a public sidewalk with a bullhorn and proclaiming the same things as written in the emails (tho not at 3am; can we say 3pm instead?)?
I admit that I’m still having a hard time wrapping my head around the fact that it’s a crime to annoy people, because I always hear people say that there’s no law against being a jerk. Clearly, to me, there are indeed laws that are designed solely to criminalize being a jerk. Am I wrong?
Sorry I wasn’t clear (and that I didn’t have time to answer this earlier).
I don’t subscribe to the prosecution’s interpretation, but it’s impossible for me to ignore the reality that that interpretation seems to have been accepted by the courts, at least in this case.
What about the 4 semi-tongue-in-cheek examples I gave earlier?
Would any of those examples be a violation of breach of peace statutes? Why or why not?
We could discuss it from the standpoint of “own personal experience” of the law…
Heh.
Apparently we cannot.
Ok, this was just posted last night, and I think it offers an opportunity to explore this further, since we have a real world scenario which semi-parallels the OP.
We have a new poster at this board. And she has explicitly said she wants no part of any harrassment.
So, if this poster ends up being pitted, and the language and sentiment are vitriolic enough to upset her, do we have a breach of peace violation? According to the reasoning I’ve seen in the court decisions, I can’t see how Hamlet’s reasoning above could come into play.
The poster has explicitly tried to halt such communications (before they even begin). As long as she has not broken her commitment to “play real nice”, how could anything nasty directed at her not be seen as a breach of peace?
Also, if her reaction doesn’t come into play at all in determining a breach of peace violation, then wouldn’t simply posting caustic remarks put the poster, and by extension the SDMB, into a legally culpable position?
I think the person who cuts off the driver could be ticketed for unsafe driving, and if there were some road rage incident that followed, perhaps; but I don’t think of the others disturbs the peace. Why? Because they are not doing things that can reasonably be defined as acts that are either intended or reasonably construed to be unusual in terms of being obviously disruptive or offensive. By disruptive or offensive, I would include things like making very loud noises at quiet times, profligate swearing at inappropriate places, challenging people to fight, and so forth. These are things that would generally strike the average person as being inappropriate and offsensive behavior.
Note that I’m not putting this in terms of things that people find annoying. Writing a check at Safeway may annoy you, but writing a check at a Safeway is completely normal behavior. One’s own peccadilloes don’t create crimes for other people.
Look, I hate Liberals as much as anyone. But the First Amendment doesn’t give you the right to send hateful emails to people calling them “traitor” and whatnot after they ask you to stop. So the kid was convicted of “disturbing the peace” (which is a legal term for “being an asshole”).
It’s generally a misdemeanor or an infraction so he isn’t exactly Nelson Mandella here.
Let me find out.
The answer to your question is probably “no”. This is a public message board and as long as the behavior is within the guidelines of the board, she has no case. Plus there is always the “ignore” button.
Ironically, if the kid in question wrote his comments in a newspaper, blog or message board or other public forum, it would probably be protected speech. But since he specifically emailed the professor’s personal account, it
isn’t.