How free is ‘abusive' speech?
December 1, 2009
by Aaron James
The Nebraska Supreme Court will take up a free speech case this week involving a college student's angry e-mails to a professor running for political office.
The student, Darren Drahota, was charged with disturbing the peace and fined $250 in Lancaster County for sending e-mails in 2006 to his former political science professor at the University of Nebraska-Lincoln, State Sen. Bill Avery of Lincoln. At the time, Avery was running for his seat in the Legislature.
The Nebraska Court of Appeals upheld the conviction in June, and a UCLA law professor appealed to the Supreme Court. The Supreme Court is set to hear arguments in the case Wednesday.
The UCLA law professor, Eugene Volokh, is representing Drahota, now 28, free of charge. In his blog, "the Volokh Conspiracy," he wrote that the case "appears to be the first published decision allowing criminal punishment for nonthreatening but insulting politically themed speech to an elected official or candidate for office."
The charge was based on two e-mails Drahota sent to Avery, a Democrat, from the e-mail address "email@example.com," including one with the subject line "traitor." Avery contacted Lincoln police, and an investigator tracked the e-mail to a computer owned by a woman who lived with Drahota, according to the Court of Appeals ruling.
In a unanimous opinion written by Judge Richard Sievers, the appeals court ruled that Drahota violated Avery's peace by using a libelous e-mail address and by accusing Avery of the crime of treason.
Assistant Attorney General George R. Love, in a brief to the Court of Appeals, said: "The e-mails sent by Drahota were meant to anger and incite Avery and often contained profane, indecent and abusive remarks."
"In no sense is that type of language protected speech," Love wrote.
The Attorney General's Office declined to comment Monday, saying it wanted to wait until after the Supreme Court hears the case. Avery also declined to comment.
The two e-mails at the center of the case were sent by Drahota on June 14 and 16, 2006. Drahota and Avery previously exchanged 18 e-mails between Jan. 27 and Feb. 10, 2006.
The content of the earlier exchange was generally political in nature, with Drahota taking a "conservative" side and Avery taking a "liberal" side, according to the Court of Appeals ruling. Three friend-of-the-court briefs were filed with the Supreme Court on Drahota's behalf. The American Civil Liberties Union Foundation of Nebraska, the Foundation of Individual Rights in Education, and a group of current and former elected officials from across the country argued that Drahota's speech should be protected.
Mike Fenner, professor of constitutional and First Amendment law at Creighton University School of Law, wrote the brief on behalf of the ACLU. He said that under U.S. Supreme Court precedent, Drahota shouldn't be convicted of a crime.
"People who don't offend anyone don't need the protection of the First Amendment," Fenner said.