State Of Neb. v. Drahota

280 Neb. 627

788 N.W.2d 796

STATE of Nebraska, appellee,

v.Darren J. DRAHOTA, appellant.

No. S-08-628.

Supreme Court of Nebraska.

Sept. 24, 2010.

Syllabus by the Court

1. Constitutional Law: Criminal Law. Whether speech that leads to a criminal conviction is protected by the First Amendment is a question of law.

2. Constitutional Law: Criminal Law. The First Amendment limits a state's ability to prosecute certain criminal offenses.

3. Constitutional Law. The First Amendment protects wide swaths of speech, but its protections are not absolute.

4. Constitutional Law: Libel and Slander: Obscenity: Criminal Law. The First Amendment does not apply to libel, obscenity, incitements to imminent lawlessness, true threats, and fighting words.

5. Constitutional Law: Disturbing the Peace. A state may constitutionally

regulate epithets likely to provoke the average person to retaliation, and thereby cause a breach of the peace.

6. Constitutional Law: Disturbing the Peace. To fall within the First Amendment exception for fighting words, speech must be shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.

7. Constitutional Law. Words must do more than offend, cause indignation, or anger the addressee to lose the protection of the First Amendment.

8. Constitutional Law: Criminal Law: Statutes. The State cannot constitutionally criminalize speech under Neb.Rev.Stat. § 28-1322 (Reissue 2008) solely because it inflicts emotional injury, annoys, offends, or angers another person.

9. Constitutional Law. In determining whether “fighting words” are unprotected speech under the First Amendment, it is the tendency or likelihood of the words to provoke violent reaction that is the touchstone of the test under Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), and both the content and the context of the speech are relevant considerations to that determination.

10. Constitutional Law: Disturbing the Peace. Even when criticisms of public figures are outrageous, if they fall short of provoking an immediate breach of the peace, they are protected by the First Amendment.

11. Constitutional Law. The First Amendment affords the broadest protection to political expression in order to assure the unfettered interchange of ideas for bringing about political and social changes desired by the people.

Eugene Volokh, of Mayer Brown, L.L.P., and Gene Summerlin, of Ogborn, Summerlin & Ogborn, P.C., Lincoln, for appellant.

Darren J. Drahota, pro se.

Jon Bruning, Attorney General, and George R. Love, Columbus, for appellee.

G. Michael Fenner, Omaha, and Amy A. Miller for amicus curiae American Civil Liberties Union Foundation of Nebraska.

Bruce Adelstein, of Law Office of Bruce Adelstein, for amici curiae current and former elected officials.

William Creeley and Azhar Majeed for amicus curiae Foundation for Individual Rights in Education.

David G. Post, of Beasley School of Law, Temple University, for amici curiae law professors.

HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

CONNOLLY, J.

SUMMARY

The State convicted the appellant, Darren J. Drahota, of a breach of the peace based on two e-mails he sent to William Avery, his former political science professor and a candidate for the State Legislature. The e-mails-laced with provocative and insulting rhetoric and with the Iraq war as a background-suggested that Avery was a traitor and that he sympathized with Al Qaeda, a terrorist organization.

We are asked to decide whether Drahota's e-mails were protected speech under the First Amendment. The Court of Appeals determined that the First Amendment did not protect Drahota's speech because the e-mails were “fighting words,” an exception to free speech protection. ¹ We disagree. Drahota's rants, although provocative and insulting, were not fighting words. We reverse, and remand because the First Amendment protects Drahota's speech.

BACKGROUND

In January 2006, Drahota began an e-mail correspondence with Avery, who was then a political science professor at the University of Nebraska. Drahota sent the e-mails to Avery's university-issued e-mail account. Although the correspondence between the two consisted of 20 e-mails, we emphasize that the State convicted Drahota only on the last two e-mails. But we discuss the previous e-mails to put the last two in context.

It is clear from the record that Drahota and Avery shared a passion for politics. At the time, Avery was running for the Nebraska Legislature, and he is now a member of that body. The first 18 e-mails between the two dealt with current issues in politics, including the war on terrorism, the Bush presidency, and the Clinton impeachment. Drahota's tone was provocative and confrontational. For example, Drahota asserted, among other things, that those who support liberal causes have a mental disease and that liberals desire the destruction of America.

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!!

Drahota responded:

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 sent Avery an apology. Avery, unmoved by the apology, asked Drahota not to contact him again. He warned Drahota that he would contact the police if he received anything else of that nature.

Four months later, in June 2006, Avery received two anonymous e-mails from the address “averylove salqueda @ yahoo. com.” The State convicted Drahota based on these e-mails. The subject line of the first e-mail was “Al-Zarqawi's dead....” The e-mail read:

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? I would guess that a joyous day for you would be Iran getting nukes? You, Michael Moore, Ted Kennedy, John Murtha, and the ACLU should have a token funeral to say goodbye to a dear friend of your anti-american sentiments.

Two days later, Avery received a second e-mail from the same address. The subject line was “traitor.” It read:

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. GO ACLU!!!!!!!!!!!!!!! GO MICHAEL MOORE, GO JOHN MURTHA!!!!!!!!!!!!! By the way, I am assuming you are a big fan of Murtha's, and anti-marine like him, but being a big liberal, don't you support those Marines that are being jailed without charges at Camp Pendleton. Oh, I forgot, they are not Al Queda members so you and the ACLU will not rush to their defense. 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 receiving these e-mails, Avery contacted the Lincoln Police Department. The police traced the e-mails to a computer owned by a woman with whom Drahota was living. When contacted by the police, Drahota admitted sending the e-mails.

The State charged Drahota in Lancaster County Court with disturbing the peace. ² After a bench trial, the court found him guilty and fined him $250. After an unsuccessful appeal to the district court, Drahota appealed to the Court of Appeals.

In rejecting Drahota's First Amendment challenge and affirming his conviction, the Court of Appeals determined that Drahota's speech constituted unprotected “fighting words.” We granted Drahota's petition for further review.

ASSIGNMENTS OF ERROR

Drahota asserts that the Court of Appeals erred in finding (1) that his e-mails constituted a breach of the peace and (2) that they were not protected by the First Amendment.

STANDARD OF REVIEW

Whether speech that leads to a criminal conviction is protected by the First Amendment is a question of law. ³

ANALYSIS

Drahota argues that the First Amendment protects his e-mails. The First Amendment...