Sending Politically Charged Emails Does Not Support Disturbing the Peace Conviction — State v. Drahota

[Post by Venkat]

State v. Drahota, 280 Neb. 627 (Sept. 24, 2010) [pdf]

Background: Drahota was a student at the University of Nebraska who corresponded via email with his political science professor Avery. According to the opinion, they “shared a passion for politics,” although they apparently resided on different ends of the political spectrum.

Drahota traded 18 emails with Avery on topics ranging from “terrorism, the Bush presidency, and the Clinton impeachment.” Predictably, at some point, their email exchange went south:

In early February 2006, the exchange came to a head. Drahota sent Avery a lengthy e-mail suggesting that indiscriminately massacring those living in the Middle East would save American lives after first suggesting that Democrats, including Avery, were full of hate.

Avery responded:

I am tired of this shit. You have accused me of being anti-American, unpatriotic, and having a mental disorder, among other things. I find this offensive and I will not engage in anymore of this with you. I served my country in uniform honorably for four years. How many have you served? Since you are so pure, so pro-American, so absolutely correct, and wonderfully patriotic, I suggest you sign-up for duty in Iraq right away and put all your claims to the test. But, of course, you will not do that. You, Michael Savage, and the “Chicken Hawks” in the Bush Administration don’t have the guts!!

Of course, Drahota felt compelled to retort:

Fuck you! You don’t know me one bit. You are a liberal American coward. If it were up to you, you would imprison Bush before bin Laden because you have such a fascination with it. I am tired of your brainwashing students who are in the process of molding their minds. I spent 18 months in Pensacola Florida before I was honorably discharged for a neck injury. You can go fuck yourself if you are going to get that way. 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 have done nothing for this country, but bad things in recent years. Once again, if you have the courage to say that to my face, I’ll let you do it, but don’t you EVER talk anything about the military with me. We call you people turncoats and I’ll be dammed if I’m going to take that kind of disrespect from someone who is so clueless as to my military background. As long as we’re on the topic, how many years did your hero Clinton serve? You contradict yourself so much that I want to puke. Your website is also a farce. You lie so much and don’t show the true you. I guess, you’re a politician. You’ve really pissed me off.

Drahota later apologized. Apparently, he didn’t get back into good graces with Avery, who asked Drahota to not contact him again. In June, Drahota sent Avery two other emails. He sent the emails from averylovesalqueda@yahoo.com. The first email asked whether Avery was sad that Al-Zarqawi was killed in Iraq, and the second email (with the subject line that said “traitor”) informed Avery that a friend of Drahota thought Avery was a “Benedict Arnold,” in light of Avery’s support for Michael Moore, the ACLU, and John Murtha. The closing sentence of this email said that “Libs like [Avery] are the lowest form of life on this planet.”

Upon receiving these emails, Avery contacted the police department, who traced the emails to the house of a woman with whom Drahota was living. When confronted with this fact, Drahota admitted to sending the emails. He was charged with disturbing the peace, and fined $250.

The Court’s Decision: The Nebraska Supreme Court held that Drahota could not be convicted of breach of the peace for sending the emails, on the basis that regardless of whether the words inflicted emotional injury, the proper test was whether the words would tend to provoke an immediate violent reaction. Here, the court held that the emails would not tend to provoke such a reaction, because the parties were engaged in an “ongoing political debate,” in the context of which, both parties had made “provocative statements.” The court also noted that at the time of the emails, in addition to being a teacher, Avery was also running for office, which brought Drahota’s emails into the realm of political speech. At the end of the day, the circumstances did not support a conclusion that the emails would have provoked an immediate violent reaction in Avery, because among other things, he did not even know who sent the emails or where to find the author.

The State belatedly raised another argument at oral argument (which it left out in its brief). It argued that Avery had the “right to be let alone” after he asked Drahota to stop emailing him, and since Drahota sent emails after Avery’s request, regardless of the content, the emails constituted a breach of the peace. The court disagreed, and rejected the State’s argument that Rowan v. Post Office Dept. supported its position. Rowan is a case from the 1970s which involved a federal statute that allowed a homeowner to request a vendor to remove his or her name from a mailing list if the homeowner found the material sent by the vendor to be sexually provocative. [Is there anyone out there would not support a statute like this that would let you ban mail order catalogs from your mail box?] The Supreme Court upheld this statute against a challenge brought by bulk mailers. The court in Drahota distinguished Rowan primarily on the basis that there was no Nebraska statute in place like the one at issue in Rowan. Further, the statute in Rowan merely allowed the government to enforce the homeowner’s preference “and had no part in deciding what was objectionable.” According to the court, in contrast to Rowan, in the present case, the decision of whether the communications were objectionable where left in the prosecutor’s hands, who enjoyed the discretion to bring a prosecution for a breach of the peace. [Rowan also mentions the quasi-physical intrusion associated with receiving unwanted mail.]

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As Professor Volokh – who represented Drahota – notes, the decision is not remarkable as a matter of First Amendment law (“Nebraska Supreme Court Decision on Offensive E-Mails“). One point that was interesting was the court’s conclusion that the emails could not rise to the level of fighting words because the recipient in this case was far removed physically from the sender. The court says this is because Avery did not even know who sent the emails, but I’m guessing he figured this out pretty quickly. Some of the commenters at the Volokh Conspiracy raised the question of whether emails can ever constitute fighting words. I don’t know the answer to this question, although some decisions hold (right or wrong) that repeated unwanted emails can result in liability for harassment. In answering the question, I think it’s worth distinguishing harassment or stalking from a “breach of the peace,” which is what Drahota was charged with here.

[Physical proximity seems to be a big factor in our views on whether electronic communications can constitute fighting words. However, we may want to keep in mind the story of the woman who supposedly traveled 200 miles to try to kill an internet commenter: “Woman Travels 200 Miles, With Gun in Hand, to Kill Mean Internet Commenter.” No comment as to whether this is reasonable or typical.]

On a related note, I happened to listen to the oral argument in Snyder v. Phelps, the funeral picketing case. Some of the discussion focused on the posting of videos online. As Dahlia Lithwick notes in Slate:

Justice Stephen Breyer—who has had a good deal to say about the Internet and incitement and free speech and balancing tests in recent weeks—also wonders whether the interesting part of this case is the handful of signs at Matthew Snyder’s funeral, which Albert Snyder never saw, or the television broadcasts and Internet postings that followed. And so he’s off: “Do you think that a person can put anything on the Internet? Do you think they can put anything on television, even if it attacks, say, the most private things of a private individual?”

I haven’t followed the case closely (other than in the news), so I can’t say whether the Supreme Court will squarely address the issue of how the internet postings will figure into whether the funeral protesters can be held liable for their speech, but I thought it was worth noting that it came up during the argument.

Congrats to Professor Volokh, whose involvement in the case was, coincidentally, the result of an email.

Added: I forgot to mention the “Twitter joke trial” case from the UK, where Paul Chambers was convicted for “sending a menacing message over a public telecommunications system” based on the following tweet:

Crap! Robin Hood Airport is closed. You’ve got a week… otherwise I’m blowing the airport sky high!

He is appealing is conviction. You can check out details about the case at the “Jack of Kent” blog (“Why the Paul Chambers Case Matters“) and at the New Statesman (“A brief guide to the Twitter Joke Trial“).

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