Nebraska Supreme Court petitioned to review student-professor e-mail case

July 16, 2009

By JoAnne Young at Lincoln Journal Star

A UCLA law professor is petitioning the Nebraska Supreme Court to review a case involving e-mails sent to Sen. Bill Avery of Lincoln when he was a candidate for office.

In June, the state Court of Appeals upheld the conviction of UNL student Darren Drahota, who had been found guilty of disturbing the peace and fined $250 for e-mails he sent to Avery in January and February of 2006. At the time, Avery was also a UNL political science professor.

Eugene Volokh, a UCLA Law School professor who specializes in First Amendment law through teaching, writing and textbooks, filed the petition Monday. He also has a blog on the Web called “The Volokh Conspiracy,” for which about a dozen law professors post their thoughts on a variety of topics.

He found out about Drahota’s case when someone e-mailed him an article on it, he said. He decided to take on the pro bono case to persuade the court it is worth hearing.

Volokh argues in the petition the Court of Appeals decision sets an important precedent that “sharply limits the constitutional protection for political speech.”

It appears to be the first published decision allowing criminal punishment for nonthreatening but insulting speech of a political nature to an elected official or candidate for office, he said.

The e-mails were sent when Avery was a candidate for legislative District 28 in Lincoln. He now serves in the Legislature.

The decision could lead citizens to be concerned their critical e-mails to government officials and political candidates will lead to criminal prosecution, Volokh said, if a prosecutor concludes the e-mails contain “epithets,” even political ones such as “traitor,” or contain “personal abuse.”

Avery and Drahota exchanged 18 e-mails – 11 by Drahota and seven by Avery – beginning Jan. 27 and ending Feb 10 of that year. Two that were sent a few months later were singled out as the subject of the disturbing the peace charge. Drahota was a UNL student at the time.

According to the Court of Appeals ruling, the content showed Drahota likely fell on the “conservative” side of conventional politics and Avery on the “liberal” side.

The court said Drahota’s e-mails were often laced with “profanity and invective.” At one point, however, Drahota told Avery he was his “favorite instructor from any class.”

When Avery said in an e-mail he wanted to end the back and forth, Drahota said he felt Avery had mistaken the “tone” of his e-mails.

Avery responded that Drahota had accused him of being anti-American, unpatriotic and having a mental disorder, among other things, and he found it offensive. He suggested Drahota sign up for duty in Iraq to put his claims of patriotism to the test.

That e-mail appeared to anger Drahota, who said he had served in the military 18 months in Florida before being honorably discharged with a neck injury. He responded with a threat of bodily harm. In the next e-mail, he took it back, saying he would not resort to violence.

The next day, he wrote an e-mail apologizing to Avery for disrespecting him, “using the F-word” and saying he would not have become physical. He said he just wanted to debate someone with the opposite point of view.

But in June he sent two more e-mails from, one of which had the subject line “traitor.” Avery contacted police, disturbing the peace charges were filed and Drahota was found guilty.

In his petition, Volokh said the e-mails did not contain “true threats” of illegal conduct, nor were they libelous, despite the e-mail address and the word “traitor.”

“First, there can be no libel ‘when the words are communicated only to the person defamed,'” he said.

Second, Drahota’s allegation, taken in context, was a “hyperbolic statement of opinion, not a statement of fact.”

E-mails, he said, do not qualify as ‘fighting words,” since the recipient and sender cannot start an immediate physical fight.

No Nebraska precedent has found a breach of the peace where speech was merely insulting, Volokh said.

And speech about public figures, such as political candidates, retains First Amendment protection, even if it is not merely uncivil, but also outrageous, patently offensive and intended to inflict emotional injury, he said.

Because of the decision, Volokh said, a person trying to figure out what legally may be e-mailed to a political candidate in Nebraska, or posted about them on a Web site, could reasonably conclude that harsh and insulting criticism is now criminal, whether or not the target has sent a message asking that the criticism stop.

Volokh characterizes himself as a moderate Republican. He said if the e-mails had come from a liberal student to a conservative professor he would be “just as eager to take this case.”

Other groups are also interested in the case, including the Foundation for Individual Rights in Education, a nonpartisan, nonprofit group that defends constitutional liberties on the nation’s campuses. Will Creeley, director of legal and public advocacy, said the organization will seek permission to file a friend-of-the-court brief.

Criminalizing protected speech provides campus censors with a dangerous new weapon to silence speech with which they disagree or is inconvenient, dissenting or unpopular, he said.

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