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.”
“The undisputed evidence is that Drahota wrote these two e-mails without identifying himself and that he used a false and libelous source for such e-mails using Avery’s name. But Drahota asserts that what he did is not the criminal act of disturbing Avery’s peace. “We cannot agree,” the court ruled.
Reading the judgment, I wondered why Avery had engaged Drahota at all, but that’s what we rhetoric types term “a red herring” kind of question. The real questions, the ones that the Nebraska Supreme Court will have to answer, will focus on protected speech, the First Amendment and technology.
In our Digital Age, where do we draw the line between public and private, professional representation and personal preferences, the personal and the political? How can we, when most live very public Internet lives thanks to social network sites and the online “post your response” climate, protect and promote First Amendment rights to Free Speech? And how is the Internet changing our sense of language and our right to use it?
Legal scholars are wondering the same thing. Some claim the law hasn’t kept up with technology. First Amendment rights and technology are hot debate topics in legal circles, so it shouldn’t be such a big surprise Volokh is coming to Nebraska. Some, however, are already naming the legal scholar an “outsider” with an agenda.
But before you lump Volokh into that dubious pool of “liberal whackjobs” pushing to ruin America with “anti-American” — whatever that means — behaviors, there are a few things you should know about the man entering Nebraska’s highest court.
Volokh is a legitimate computer programmer. He graduated college when he was 15 years old. He’s techno-savvy, a “mathlete” and still a partner in a humble software firm hocking HP 3000 software he created. He’s very much part of the digital elite. After 12 years in the industry, he studied law at UCLA before clerking for U.S. Supreme Court Justice Sandra Day O’Connor.
Now a professor at UCLA School of Law, Volokh describes himself as “conservative-ish Libertarian with a little bit of liberal thrown in at times.” With more than 60 law reviews and 80 op-eds under his belt, Volokh is also the author of three textbooks. In one of his articles, “The Vanishing Second Amendment,” printed by the New York University Law Review in 1998, he asserts that his “interpretive approach” was built “on the notional that Bills of Rights are aimed at constraining the government.”
Volokh’s interpretation of individual versus state rights shapes a great deal of his public discourse. One would be hard pressed to label him as a truly libertarian, conservative or liberal, as he refuses such categories by maintaining a fierce dedication to legal precedence, public argument and exchange as the key to his academic life and public service. For Volokh, conversation and debate creates new knowledge. First Amendment rights protect that process.
One could call him a “flip-flopper,” but only if one failed to grasp the complexity of the public and legal debates Volokh fosters.
Questions that could be at the center of the case: Did Drahota have the right to use an e-mail address as a protest sign while addressing a public figure? Should the Avery-Drahota e-mails written while Drahota was a student factor in the case surrounding the anonymous, political e-mails? Is Drahota’s e-mail address a personal but political statement, a digitized placard, like Paul Robert Cohen’s infamous “Fuck the draft” jacket in California v. Cohen?
In that case, U.S. Supreme Court Justice Marshall Harlan wrote, “…one man’s vulgarity is another’s lyric,” and the final ruling was simple: States can’t censor citizens while trying to engineer a “civil” society, the line between emotions and vulgarity can be difficult to draw,and “bad” words are a byproduct of the free exchange of ideas, even when those ideas are troublesome or radical.
There’s a substantial First Amendment issue in this case from the digital public sphere. Even the Nebraska chapter of the ACLU, an entity some call “the American Snivel Liberties Union,” the entity Drahota labeled “un-American,” will be filing an amicus brief on his behalf.
As the case unfolds and records become public, Nebraskans should expect national interest in the case. Also expected: the standard name-calling and accusations of treason that seem to accompany political exchange. With a legal mind like Volokh’s at work, h owever, we may not be able to draw distinct lines between “sides” as we contemplate First Amendment rights.
Put the case on your radar and pay attention, folks. But buckle up: Political turbulence is imminent.
Erica F. Rogers is a fourth year doctoral English major. Reach her at ericarogers@dailynebraskan.com.
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