Darren Drahota, a former UNL graduate student, was charged with disturbing the peace in 2007 following an exchange of e-mails between him and former UNL political science professor William Avery. At the time, Avery was an electoral candidate for the Nebraska Legislature, a position to which he was ultimately elected, according to court documents. Drahota was fined $250.
University of California-Los Angeles law professor Eugene Volokh is now pushing the appeal. Drahota has previously filed a motion in 2008 in district court, which affirmed his conviction. Volokh, who is taking the case pro bono, argued in the hearing that the two e-mails sent were constitutionally protected under the First Amendment and do not constitute a breach of the peace under Nebraska law.
The issues on review were that the Court of Appeals, which upheld Drahota's conviction in June, erred in finding the First Amendment did not protect the two political e-mails sent to a state legislature candidate and erred in finding his e-mails a breach of the peace, according to court documents.
Drahota's charge of disturbing the peace stems from an exchange of 18 e-mails sent between Drahota and Avery from January to February 2006. The e-mails involved their differing opinions on topics including President Clinton's impeachment, Muslims and the war in Iraq. Drahota then said he would not contact Avery, according to the Court of Appeals ruling.
Two more e-mails followed in June 2006, which were the subject of the charge. The anonymous e-mails were sent from a different domain name, with the first having "Al-Zarqai's dead…" as the subject line, and the second e-mail having the subject line "traitor," according to the Court of Appeals ruling. In the e-mails, Drahota called Avery a "traitor," said he wanted to "puke all over him" and that Avery was the "lowest form of life on this planet."
After the second e-mail, Avery contacted the police. Drahota was charged with disturbing the peace after admitting he sent the e-mails.
The nature of the e-mails shows it couldn't be considered an immediate breach of the peace, Volokh said. The content of the e-mails didn't involve fighting words, or words to intentionally cause emotional distress or cause someone to immediately physically retaliate, which aren't protected under the First Amendment. Because it didn't contain fighting words, the e-mail is protected First Amendment speech and doesn't constitute breach of the peace under Nebraska law.
George Love of the Nebraska Attorney General's office argued the court affirm Court of Appeals' decision, not because of the speech involved, but because of the conduct and the context. He also said Avery had the right to be left alone.
The high court will rule later on the case and decide to affirm the conviction and the decision from the Court of Appeals, or to rule the e-mails were protected under the First Amendment. The Nebraska Supreme Court is the state's court of last resort, and its decision is binding on all trial courts.
paigecornwell@dailynebraskan.com
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