In State of Nebraska v. Darren J. Drahota, the Nebraska Supreme Court recently held that a college student’s vulgar and insulting e-mails to his former college professor attacking the professor’s political views were protected free speech. The Court reversed the decision of the state appellate court, which held that the e-mails amounted to "fighting words" and therefore fell within an exception to the First Amendment’s Free Speech Clause. The decision highlights the challenges and limitations for higher education institutions, particularly public colleges and universities, when attempting to regulate inflammatory speech on campus.

In January 2006, Darren Drahota, a University of Nebraska-Lincoln student, started sending e-mails to his former political science professor William Avery, who was running for the state legislature. Drahota criticized Avery’s opinions on a variety of political topics including the Bush Administration and its policies, the Clinton impeachment, the Iraq war, Muslims, terrorism and military service. At times, Drahota’s e-mails contained passionate and profanity-laden rants that were disrespectful, angry and hostile towards minorities and Avery, whom he labeled a "liberal bum."

At some point, Avery became fed up with his former student’s tone and demeanor and stated "I am tired of this . . . You have accused me of being anti-American, unpatriotic, and having a mental disorder, among other things." Avery, a military veteran, then accused Drahota, who had been expressing very militaristic views, of being a coward and challenged him to join the military. Drahota took offense at the comment and sent an e-mail response cursing Avery and stating that he would "kick [Avery’s] ass" if he ever made those comments to him in person. Drahota then created an e-mail account with the address "averylovesalqaeda@yahoo.com" and sent two e-mails to Avery accusing him of being a terrorist supporter and a traitor and stating that Avery should be forced out of this country.

Avery reported the latter two e-mails to the police. Drahota was then charged and convicted of violating a state law prohibiting any person from disturbing the peace and quiet of another and was fined $250. Drahota unsuccessfully appealed the decision to the state appellate court arguing the conviction violated his First Amendment free speech rights. The appellate court held that the tone and substance of Drahota’s e-mails amounted to "fighting words" that were not protected under the First Amendment. On appeal, the state supreme court reversed the conviction, holding that the court of appeals misapplied the "fighting words" exception. The Court explained that the "fighting words" exception was directed at words that had a tendency to provoke a violent reaction or present a clear and present danger of a serious substantive evil. Further, Drahota’s e-mails, though provocative and vulgar, did not reach the level of this exception.

The Nebraska court’s decision, while not binding in Illinois or in other jurisdictions, reflects the prevailing standards relating to inflammatory political speech. More importantly, the case is instructive to public education institutions faced with the challenges of policing such speech to prevent and combat campus violence. Public colleges and universities should evaluate the First Amendment implications when enforcing policies that may restrict or punish student or faculty speech.