Law, College of
Nebraska Law Bulletin (Selected Issues)
Date of this Version
12-3-2009
Document Type
Article
Citation
Nebraska Law Bulletin (December 3, 2009)
Abstract
Currently pending before the Nebraska Supreme Court is a case that seeks to balance two very important rights–the right to be left alone and the right to free speech. This indeed requires a delicate balance. On one hand, an error in one direction will force Nebraskans to endure demeaning, harassing, and offensive speech, even in their own home. But on the other hand, an error in the other direction will impede free speech, one of our society’s most cherished rights.
This commentary seeks to help the court find the right balance when it decides State v. Drahota, a case in which nasty emails became the basis for a charge of disturbing the peace. It argues that while the Nebraska Court of Appeals misapplied the law of the First Amendment, the Nebraska Supreme Court could uphold the conviction without violating the First Amendment by relying on a different line of cases. This article contains four sections. First, the underlying facts of the case will be put forward. Next, the decision of the court of appeals will be discussed. A brief overview of the relevant First Amendment principles will then follow. This overview will show how the court of appeals got it wrong and how the supreme court can get it right. This commentary concludes with a brief section exploring what a Nebraska statute criminalizing the type of conduct at issue in Drahota may look like.
Comments
Copyright 2009, the author