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ROGERS: First Amendment at forefront of pending Supreme Court case

Published: Sunday, October 4, 2009

Updated: Sunday, October 4, 2009 23:10


F irst Amendment lovers of Nebraska, we're in for a bumpy ride.

Former UNL graduate student Darren Drahota will again appear in court regarding the "disturbing the peace" charge the state filed against him after he sent two too many e-mails in 2006 to his professor, Bill Avery, now serving in the Nebraska Legislature on behalf of District 28.

This time, when his case comes before the Nebraska Supreme Court, Drahota will have a nationally renowned attorney, Eugene Volokh, at his side, a legal mind flying all the way in from California to lend his pro bono legal advice.

According to court records, it seems the ex changes between Avery and Drahota were at first an ongoing political conversation between student and professor — 18 e-mails in 14 days spanning from Jan. 27 to Feb. 10, 2006.

Drahota was on the conservative side of the political divide, while Avery represented the liberal one. I hesitate to make this tidy distinction, but the Nebraska appellate court ruling on the case, 17 Neb. App. 678, does.

Like most political debates these days, the Avery-Drahota conversation dissolved into name-calling, insults and accusations of treason. In the end, neither party used rhetorical strategies one would call "civil."

Public records show Avery eventually declared an end to the e-mail exchanges. Drahota responded, claiming his tone had been misunderstood. He offered to meet Avery for a drink to discuss his legislative campaign.

Avery replied to Drahota with an e-mail beginning, "I'm sick of this shit," which listed Drahota's accusations as Avery interpreted them, suggested Drahota enlist for service in Iraq and linked Drahota to "Michael Savage and the ‘Chicken Hawks' in the Bush Administration."

Drahota volleyed with, "Fuck you! You don't know me one bit. You are an American Liberal coward." Then his discourse gets a little, well, you decide:

"I'd kick your ass had you said that right in front of me, but YOU don't have the guts to say that. If you think you do, just try me … You contradict yourself so much that I want to puke … You lie so much and don't show the true you…. You've really pissed me off [.]"

Interestingly enough, that could have been the end of the matter, but in June 2006, Drahota anonymously sent two more e-mails to Avery, using the address, averylovesalqueda@yahoo.com.

In one of them, Drahota asks if Avery is saddened by the death of Abu Musab al-Zarqawi and then suggests, "… You … and the ACLU should have a token funeral to say goodbye to a dear friend of your anti-american sentiments."

The anonymous e-mails were turned over to authorities. Drahota was charged and found guilty of disturbing the peace and fined $250. He appealed, but the court labeled the e-mail address Drahota used as "libelous" and the totality of his e-mails to Avery as hardly representative of "civil discourse and debate."

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7 comments

Geoff
Mon Oct 12 2009 17:19
Avery shouldn't have taken either job (prof. or pol.) if he couldn't handle them. I didn't see any "threats." In Nebraska, you have to prove a threat was made with intent to terrorize, which would be hard here. So, disturbing is better. But then maybe Bill Avery should be charged, too. If it had escalated into a physical altercation, like old-man Avery fantasized in one of his email responses, they would have both been charged with 3rd degree assault by entering into a fight by mutual consent. That kind of encapsulates what this was: a mutual feud. But Avery ran and told the teacher.
Justin
Wed Oct 7 2009 10:06
If you want to know the truth, they should have sentenced Drahota to prison for his threats. This type of behavior can not be tolerated in our society. Avery did the right thing, and if I ever received such threatening emails I would go directly to the police as well.
Tom
Mon Oct 5 2009 17:15
Yes Justin - being a member of the vast right wing conspiracy I can tell you that the creed that I recite specifically calls on us to only defend free speech rights when it comes threatening others....especially liberals.
Justin
Mon Oct 5 2009 15:24
Poor Drahota. He should have just threatened Avery with a gun. Everybody knows that's legitimate political speech (but only when Republicans do it.)

Isn't it amazing that the only "free speech" conservatives have ever cared about is their freedom to threaten and harass liberals?

Tom
Mon Oct 5 2009 11:23
that should have been "these two" rather than "these too"
Tom
Mon Oct 5 2009 11:12
Shouldn't they have gotten Drahota on some sort of intimidation or threatening charge? I'm glad to see Drahota interacting with his state representative, but he should have a little bit more decency when discoursing with his/her rep. I would like to believe that Avery would know better than to reply in a similar manner.

Maybe these too will get an invite to the next beer summit at the whitehouse.

Gerard Harbison
Mon Oct 5 2009 10:44
What is sad is that an alleged liberal, and political science teacher of long standing, used the police to prosecute political speech. Bill Avery should know better. There are two wonderful remedies if you get email from a clearly strange address. The first is the delete button -- why would you read an obviously hostile email anyway? Who knows what viruses might be attached? The second are spam filters, which these days are quite effective. I don't know Darren Drahota from a hole in the ground, but I expected more of Bill Avery.

Drahota was petitioning a political candidate on a political matter. To make his speech - the most protected category of speech - criminal, when there exist easy remedies that do far less violence to the first amendment, would be illogical.

By the way, the ACLU and other Nebraska free speech guardians got on board only after Eugene Volokh took the case.







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