Drahota v. Nebraska (S08-628) 788 N.W.2d 796 (2009)

Nebraska Supreme Court

Bruce authored an amicus brief on behalf of 12 current or former elected officials in support of the speaker in this First Amendment case. The defendant, a former college student, had sent provocative political emails to his former professor who was running fot statewide office, criticizing the professor’s views on the Iraq War and President Bush. The emails were sent from public computers and under pseudonyms. The professor complained to police, and the defendant was charged with disturbing the peace and fined $250. Professor Eugene Volokh represented the student on appeal. The Nebraska Supreme Court reversed the conviction, holding that the emails were protected political speech and did not constitute fighting words or true threats. The court emphasized that robust political discourse, even when caustic or offensive, is protected under the First Amendment.

Opinion

Case Note

First Amendment cases often involve marginal speech (here, offensive e-mails) and minor penalties (here, a $250 fine). But even in such cases, the principles underlying the First Amendment are fully implicated. (However, not all such cases are worth appealing.)

Krell v. Gray (B169593A) (2005)

California Court of Appeal

Second Appellate District, Division Five

Bruce represented the appellant, a former substitute teacher, in an appeal from a civil harassment injunction obtained by a school administrator. The injunction barred the former teacher from picketing near the school or mentioning the administrator on protest signs. Bruce initially lost on appeal, but the Court of Appeal misconstrued the applicable law. This is one of those rare cases where a rehearing petition was warranted. On rehearing, the Court of Appeal reversed the injunction in full and held that the remaining injunction violated the appellant's First Amendment rights, because the picketing was peaceful and did not disrupt school operations. The court ordered the petition denied and awarded Gray costs and attorney fees pursuant to the anti-harassment statute.

Opinion

Aguilar v. Avis Rent A Car System, Inc. (S054561) (1999)

California Supreme Court

Bruce authored an amicus brief on behalf of the National Writers Union, the Reason Foundation, the Libertarian Law Council, and the Center for Individual Rights in this important case about the intersection of employment discrimination and the First Amendment. The plaintiffs, a group of Latino employees, alleged that their employer, Avis, failed to prevent and remedy a hostile work environment created by a manager’s repeated use of racial slurs. The trial court found in favor of the plaintiffs, awarding damages and an injunction prohibiting the use of specific racial epithets. The employer appealed and challenged only the injunction as an invalid prior restraint. The California Court of Appeal held on a 2-1 vote that the injunction did not violate the First Amendment, although remanded to limit its scope to the workplace. The California Supreme Court, on a 4-3 decision, rejected the First Amendment challenge on a highly technical ground: the employer failed to provide a reporter’s transcript of the long trial, and so the Supreme Court did not have a full picture of exactly what words the manager used and in what contexts. The dissent Justice Werdeiger’s concurring opinion would have reached the First Amendment issue, noting that there was sufficient evidence to reach this issue even without a full trial transcript, and concluded that the injunction did not violate the First Amendment. The three dissenting opinions from Justices Mostk, Kenndard, and Brown concluded that the injunction did violate the First Amendment.

Opinion

Case Note

This case presents an important issue about the intersections between harassment law and the free speech guarantees of the First Amendment. But it also shows the importance of a proper appellate record in reaching important issues.