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Pro Bono Free Speech Case:

I'm glad to say I have an interesting pro bono case — a petition for further review by the Nebraska Supreme Court in State v. Drahota (Neb. Ct. App. June 16). Here's the petition, which was just filed yesterday, with some of the formatting details omitted; hope you find it interesting. Please note that the petition went right up to the 10-page limit allowed for such petitions, so that it's necessarily terse on some matters. Also, this is a petition for discretionary review by the state supreme court, and the goal is to persuade that court that the case is worth hearing. If the Nebraska Supreme Court agrees to hear the case, then I'll write a brief that focuses solely on the merits.

Facts

In early 2006, Appellant Darren J. Drahota was a University of Nebraska student who had been in William Avery’s political science class. Avery was still a University professor, but had announced that he was running for the Nebraska Legislature.

Drahota e-mailed Avery on Jan. 27, 2006, which led to an exchange of 18 e-mails over two weeks. At least one of Drahota’s e-mails used epithets and personal insults of Avery, alongside political commentary. One of Avery’s e-mails used an epithet and an insult of Drahota as well, saying “I am tired of this shit” and saying Drahota “and the ‘Chicken Hawks’ in the Bush Administration” didn’t “have the guts” to join the military. At the end of the exchange, Avery e-mailed Drahota saying, “Please consider this email a request that you not contact me again for the purpose of spilling more vile [sic].” Drahota responded with an apology.

Four months later, Drahota sent two more e-mails to Avery, this time from the address “averylovesalqueda@yahoo.com.” In the first, Drahota wrote concerning the death of an Iraqi terrorist, and asked Avery: “Does that make you sad that the al-queda leader in Iraq will not be around to behead people and undermine our efforts in Iraq? . . . You . . . and the ACLU should have a token funeral to say goodbye to a dear friend of your anti-american sentiments.” The second had the subject line “traitor,” and read, in relevant part,

I have a friend in Iraq that I told all about you and he referred to you as a Benedict Arnold. I told him that fit you very well. . . . I’d like to puke all over you. People like you should be forced out of this country. Hey, I have a great idea!!!! . . . Let’s do nothing to Iran, let them get nukes, and then let them bomb U.S. cities and after that, we will just keep turning the other cheek. Remember that Libs like yourself are the lowest form of life on this planet[.]
After a bench trial, Drahota was convicted of breach of the peace. The Court of Appeals affirmed the conviction, based solely on the last two e-mails. 17 Neb. App. at 685, 687.

Argument

I. The Importance Of This Constitutional Precedent Warrants Review By This Court

The decision below sets an important precedent, in Nebraska and elsewhere, that sharply limits the constitutional protection for political speech. It 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. Prosecutors throughout Nebraska and the country will now be more likely to conclude that such speech could indeed lead to a prosecution. And citizens throughout the country will now be rightly concerned that their critical e-mails to government officials and political candidates will lead to criminal prosecution if a prosecutor concludes the e-mails contain “epithets” (even clearly political ones such as “traitor”) or “personal abuse.”

Steve:
[and this principle would apply equally to candidates for the state legislature.]


This proposition is conspicuously missing a cite. One could reasonably believe that elected officials are different from mere candidates.
7.14.2009 2:58pm
Eugene Volokh (www):
Steve: It's true that one could so conclude. But my assumption is that the court will agree that the principle applies equally to candidates for the state legislature, just as candidates are treated the same as elected officials for purposes of "public figure" status in libel law (an assertion for which I do give a citation earlier).
7.14.2009 3:06pm
Lior:
A preliminary question (probably obvious to the experts) concerns the reason that these e-mails constitute "speech" which is protected by the First Amendment.

Is it simply because all communication between any two people is covered under "freedom of speech", or does Avery's status as a (potential) public official matter?
7.14.2009 3:09pm
Brian G (mail) (www):
He should have had a jury trial. Plus, I firmly believe had he disparaged Bush and Cheney in those e-mails, he would have never been charged.
7.14.2009 3:15pm
martinned (mail) (www):

Pro Bono Free Speech Case

I would think that the last thing we need is more speech from Bono. But what do I know...
7.14.2009 3:17pm
Steve:
But my assumption is that the court will agree that the principle applies equally to candidates for the state legislature, just as candidates are treated the same as elected officials for purposes of "public figure" status in libel law.

I think your argument is reasonable. My view is that sure, both are public figures, but the sort of public policy considerations that preclude an elected official from saying "stop writing me" don't necessarily apply to mere candidates. In the former case, you're exercising your right to petition the government for a redress of grievances, but in the latter case the candidate isn't actually a part of government just yet.
7.14.2009 3:17pm
PDXLawyer (mail):
You don't have a right to a jury trial in most cases if you are not charged with a felony and no incarceration is sought. Nor, IIRC, are you entitled to a government-paid lawyer in those cases.

Thus, they're a good vehicle for local officials to get a court ruling that their critics are crminals without a lot of pesky due process.
7.14.2009 3:27pm
Eugene Volokh (www):
PDXLawyer: Mr. Drahota was represented by counsel at trial, and I believe he waived his right to jury trial.

But more generally, the Sixth Amendment has indeed been read as not securing a right to a government-paid lawyer in cases where incarceration is off the table as a punishment, and as not securing a right to a jury trial in cases where the statute authorizes no more than six months' imprisoment as a penalty.
7.14.2009 3:37pm
zuch (mail) (www):
Brian G:
... I firmly believe had he disparaged Bush and Cheney in those e-mails, he would have never been charged.
Had he written e-mails like that to Dubya and Ctheney, he would have had the SS all over him thick as flies.

That being said, I see nothing in his e-mails that is more of a threat than stuff that you hear every day on Sean Hannity, Bill O'Reilly, or Michael "Savage". And that may be worth boycotting (and certainly is worth avoiding), but is not criminal per se.

Cheers,
7.14.2009 3:40pm
David M. Nieporent (www):
So, wait, this university professor/candidate for public office reported his former student to the police because he was irked that the student was criticizing him via email?
7.14.2009 3:47pm
wunderola:
Were the emails from "averylovesalqueda@yahoo.com" sent to Avery's private email address?

Although Avery became a public figure when elected, he probably still has the right to not be subjected to abuse in a purely private communication. Drahota had previously agreed to stop contacting him, so this rant to a private email would be a breach of peace.

If this was a publicly available address, like the one for whatever office it was that Avery got elected to, then Avery should just develop a thicker skin.
7.14.2009 3:53pm
Philistine (mail):
What was the text of the section of the statue that he was convicted of?
7.14.2009 3:58pm
DNL (mail):
The actual emails (well, the quotes from the App Div) are amazing. Respondent calls Appellant a "chicken hawk" and Appellant, to use the term of art, loses it. Turns out he served in the military for 18 months, but was honorably discharged following a neck injury, and was upset by both that discharge and understandably by Respondent's ignorant insult.

To boil it down a bit further:
* R calls A a coward
* A, to use the Wild West vernacular, says "thems fightin' words!" and gives him a "Why I oughta..." on top of that.

If anything, Respondent's speech is inherently likely to provoke a violent reaction, not the other way around. Quite literally, as Appelant said in his "rather immediate" reply email "I'd kick your [butt] had you said that right in front of me."
7.14.2009 4:16pm
hospis (mail):
Many judges consent with me on restricting barbarous or abusive speech. Last month, famous racist radio talk show host Hal Turner was arrested by FBI for exhorting his vulgar audience to beastly violence; last year, Chicago law professor Sunstein published "Nudge", which argues for a rational State to correct some beastly conduct; Sunstein has announced his new book, and I cite below from NY Post's reviewer since Sunstein's publisher hasn't yet produced the book in retail stores:

"Cass Sunstein, a Harvard Law professor who has been appointed to a shadowy post that will grant him powers that are merely mind-boggling, explicitly supports using the courts to impose a "chilling effect" on speech that might hurt someone's feelings. He thinks that the bloggers have been rampaging out of control and that new laws need to be written to corral them."

All civilized societies including the American colonies have always presumed a rational citizenry; SCOTUS has described Protected Speech as a medium for ideological exchange in the "marketplace of ideas" and also as "a step to truth"; only Man as Aristotle observed over 2000 years ago uses Reason in governing.

Man is not the only animal that congregates and having done that attempts to exterminate other congregations; Man also is not the only animal that insults or humiliates others. Gestures and ejaculations then that injure or humiliate others are not a product of Human Reason; also, men who exhort others to congregate and then assault others only for cause of variety are acting as Beasts and not Rational Humans.

Civilized society consists of a rational citizenry and cannot then survive its citizenry's degradation to a herd of beasts. The State has a duty to its citizenry to fortify the "marketplace of ideas" against the screeches and spitting of Beasts, and it also has a duty to repel noxious Beasts who exhort others to beastly conduct. Even more, a benevolent and prudent State has a duty to correct beastly conduct, thereby both elevating the Beasts and protecting the Humans, and thus "nudge"--as Sunstein expresses the benevolent motive--Beasts back into civilized society.
7.14.2009 4:25pm
33yearprof:
Neither of the last two e-mails (as quoted above) has ANY hint of IMMINENT VIOLENCE directed against the recipient.

They are no more offensive than any of the hundreds of e-mails I've received from obnoxious anti-gun fanatics in the 25 years that I've been a "public figure" on this issue and an outspoken advocate of a MEANINGFUL individual right to keep and bear arms. If a professor is going to step out of the Ivory Tower and (1) politicize his classes, or (2) publicly advocate controversial views, (3) write/speak in public forums regarding those views, (4) run for public office, or (5) hold public office, then he had better grow a thick skin.

The nursery rhyme is correct: "Sticks and stones may break my bones but WORDS will never hurt me."

Time to go to FEDERAL court where the US Constitution generally finds a much more staunch defense.

Political speech should have the utmost in First Amendment protection.
7.14.2009 4:44pm
ShelbyC:

Time to go to FEDERAL court where the US Constitution generally finds a much more staunch defense.


I don't think he can, can he? Younger and such, no?
7.14.2009 5:08pm
rosetta's stones:
This should be a no-brainer, and I'm stunned that first a trial court and then an appeals court went along with this foolishness.

Block the guy's email addy, if he's verbally abusive. If he changes it, block that one as well. If he then engages in further cyberwar tactics, then you might have a case against him, but the facts in this case seem to lean towards individual free speech, however vulgar and rude, being expressed.
7.14.2009 5:22pm
Eugene Volokh (www):
ShelbyC: You are wise in the ways of abstention.
7.14.2009 5:29pm
einhverfr (mail) (www):
Interesting case. I hope you win.

It is also interesting that your brief sets possible frameworks for constitutional cyber-stalking laws forward along lines I have advocated in the past-- that an unambiguous attempt to cut off contact might be sufficient in some cases to lead to conduct outside the protection of the First Amendment.

This case, however, strikes me on the very edge of free speech protections. Had the letters been open letters, publicly posted intended to humiliate the candidate they would have been certainly protected as they relate to political issues on an on-going campaign. While I am sure the defendant's sole purpose in the case was to harass Mr Avery, it seems to me less damaging than to go the fully protected direction (and put them up on MySpace, etc. for all the world to see). Thus I am not at all certain what the state expects to get from a prosecution in this case so I don't think the court should rule the speech to be unprotected.

However, as to the Chickenhawks in Bush 43's administration, I have this to say:

"Georgie porgie pudding pie
Kissed the girls and made them cry.
When the boys came out to play,
Georgie porgie ran away!"
7.14.2009 5:31pm
David Hardy (mail) (www):
Never heard of a case of disturbing the peace being based on a written communication, mailed or emailed. At least around here, the understanding is that it had better (1) involve LOUD verbal communications or something like that that (2) disturbs the peace of a third party (people involved in an argument can expect to have their peace disturbed, it's the rest of us that the law protects).

Ditto with fighting words. There may be curses and insults that, delivered face to face, might provoke imminent violent response, but it's hard to say the same of email or a registered letter. It's hard to see how violence can be imminent when the recipient of the communication doesn't even know how to find the sender (who might be sending from his laptop in a hotel room during vacation in Bali, or from work, or via his Blackberry somewhere else).
7.14.2009 5:33pm
ShelbyC:

ShelbyC: You are wise in the ways of abstention.


In one sense maybe :-).
7.14.2009 6:09pm
Freedom:
Hospis, how Orwellian of you. The fact that Sunstein is also Orwellian does not negate that fact.
7.14.2009 7:26pm
J Richardson:
According to Senator Avery's bio at Legislative Bio, he is a native of North Carolina and was educated in the South (Univ. of Tennessee and Tulane).

Avery should have emulated a great Tennessee frontier lawyer, Andrew Jackson, and challenged young Mr. Drahota to a duel. Given that it was Nebraska, I'd have suggested dried corncobs at 10 paces. That would have settled things without having to drag the courts into it. Instead, he betrayed his Southern ancestry and education and went with the bland Mid-Western approach of filing a complaint with the police. (sigh)
7.14.2009 7:42pm
Brian G (mail) (www):
Zuch,

come to think of it, you may be right. Although writing an e-mail to any politician is as big a waste of time as there is.

Where is the ACLU in all this by the way?
7.14.2009 7:52pm
zuch (mail) (www):
Brian G:
Where is the ACLU in all this by the way?
I'd hope and expect that the ACLU would be on Mr. Drahota's side if asked. But it's up to him whether he wants such a commie-symp bunch of Osama-lovers helping to defend him. Do you think he does?

Cheers,
7.14.2009 8:33pm
rosetta's stones:
Forget the kid, why wouldn't the com-symp Osama lovers file a petition independently, if they're truly interested in freedom of speech?

Perhaps they're precluded from doing so, but one would think the American Civil Liberties Union would be interested in such a case.
7.14.2009 9:39pm
ReaderY:
Professor Volokh,

Is it your position that Chaplinsky v. New Hampshire doesn't apply if a politician is involved, i.e. politicians are supposed to be impervious to "fighting words"? Or do you believe the "fighting words" doctrine no longer applies at all?

Or are you arguing that mail and email do not threaten "imminent" breach of the peace in the same way that words spoken in a person's presence do?
7.14.2009 10:00pm
ArthurKirkland:
Two boors collide, and the resultant sparks generate not an exchange of apologies and corresponding reflection but instead a dubious conviction and consequent appellate litigation.

There may be a silver lining for the beleaguered student, however. The notoriety and content of his messages may position him for a Bradley fellowship, a Cato internship and an Olin scholarship. Or a Bradley internship, a Cato scholarship and an Olin fellowship. Or a Bradley scholarship, a Cato fellowship and an Olin internship. Or . . . complete the series.
7.14.2009 11:14pm
Eugene Volokh (www):
ReaderY: I thought Part II.A answered your question.

Brian G, Zuch, Rosetta's Stones: As to the ACLU, I tried to get in touch with them to ask whether they could file an amicus brief, but I didn't hear back from them; I do know, though, that they're swamped, and it might be quite reasonable for them not to take time to file amicus briefs when there's already a First-Amendment-knowledgeable lawyer on the case.

And an amicus brief is all they could file; they can't just file their own petition -- only the losing party below can.
7.14.2009 11:22pm
Cornellian (mail):
Was there in fact a finding that the emails were non-threatening? I think it's at least arguable that they were threatening, e.g. "puke all over you" would be a criminal battery.
7.15.2009 12:06am
Cornellian (mail):
On the theory that the best remedy for objectionable speech is more speech, I think the prof would be better off just posting the emails on a blog under a heading like "[Author's] unprofessional conduct," there to be found by a simple Google search by any employer to which the student applies for a job.
7.15.2009 12:09am
ArthurKirkland:
I would prefer to see the professor attempt to improve the student's character (or, at least, his conduct) than to see the professor attempt to sabotage the student's job search.
7.15.2009 1:00am
Cornellian (mail):
I would prefer to see the professor attempt to improve the student's character (or, at least, his conduct) than to see the professor attempt to sabotage the student's job search.

Easily accomplished. The prof can just tell the student that he'll post the emails on his blog after a twenty day delay following the last of the emails and the student should feel free to make any further comment he wishes during that twenty day period. If the student starts acting like an adult during that twenty day period, perhaps after a few days to reflect on what an idiot he is, the prof can always change his mind about posting the emails.
7.15.2009 1:29am
james_m:
I am a former student of Professor Avery's. He taught (teaches?) Political Science at the University of Nebraska - Lincoln. He is active in politics. FWIW (which may not be much), he welcomed thoughtful discussions in class, even if he sometimes seemed dismissive of opposing viewpoints.

Also somewhat interesting to note, he never tried to hide his Democratic slant...he had a statue of a donkey on his desk.

EV - You have written a solid brief. If it's not too late, I would try the ACLU again. They'll echo your position, but it seems clear to me that the judge was incorrect in his decision. Two heads are (usually) better than one, right?
7.15.2009 10:40am
Eugene Volokh (www):
James_M: It probably is too late, and I don't want to nag the Nebraska ACLU about this. We are expecting amicus briefs, though, from a group of law professors and from the Foundation for Individual Rights in Education, so there will be some other heads chiming in.
7.15.2009 12:36pm
rosetta's stones:
Volokh, I'll be glad to prepare a supportive brief for your case.

Or, and as likely more applicable, I'll entertain an appropriate offer not to present my brief. ;-)
.
.
.

Good luck with your case, and bless you for taking time here on this work.
7.15.2009 3:21pm
james_m:
EV: I'm sure you have capable local counsel, but please don't hesitate to ask if there's anything I can do to help. I practice in Nebraska, and would be happy to assist.
7.16.2009 12:58pm
Eugene Volokh (www):
James_M: Thanks, much appreciate it, and may well take you up on it should there be more proceedings on this (as I hope there will be).
7.16.2009 1:12pm

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