E-mail, Anonymity and the First Amendment: State of Nebraska v. Darren J. Drahota

This case arose out of an e-mail exchange between a student and his professor. Here is an excerpt from the recent decision by the Nebraska Court of Appeals:

… The trial court found, summarized, that while there was initially some back-and-forth banter, Avery asked that it stop. Instead, Drahota waited 4 months, then created a fake address, “averylovesalqueda@yahoo.com,”from which he sent the two e-mails forming the basis of the charge. Avery testified that he was “disturb[ed]”by Drahota’s actions. The trial court convicted Drahota of disturbing Avery’s peace.

In the two e-mails sent to Avery from the above address, with no indication that they were actually from Drahota, Drahota first wrote concerning the death of Abu Musab al-Zarqawi (a known high-level terrorist in Iraq), 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.”

In Drahota’s e-mail of June 16, 2006, with the subject line”traitor,”Drahota wrote to Avery: “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[.]

Therefore, looking at only the two e-mails that were sent on or about June 14, 2006, per the complaint filed against Drahota, we note that after a hiatus of 4 months, Drahota, using a libelous e-mail address, accused Avery of being aligned with a terrorist group responsible for unspeakable violence in this country as well as in Iraq against U.S. troops and Iraqi citizens. He called Avery a traitor, said that he wanted to”puke all over”him, and stated that Avery is the”lowest form of life on this planet.”…

This factual circunstance is unusual. Almost every feminist blogger I know has received this kind of e-mail or much worse, but rarely (never that I am aware of) will law enforcement take any action. The e-mailers are savvy enough to make only passive statements rather than overt threats, writing e.g. “You should choke on an enormous dick and die” rather than directly stating that they will kill you, and the pro forma police response is “this isn’t any actual threat and we can’t arrest people just for being nasty.” Here Avery’s concern about the e-mails was taken seriously by the police, and then by judges at both the trial and appellate levels. Some civil libertarians are enraged by this, perceiving an acute threat to the First Amendment if people like Drahota don’t have the right to send these kinds of anonymous e-mails to people who have asked them to cease contact. So this case bears watching.

–Ann Bartow