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.


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 “” 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.


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.”