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The Nebraska Supreme Court heard oral arguments Wednesday on cases of local interest, including the 2005 sexual assault of a kindergartner and whether free speech protects a person's right to send offensive e-mails.

The high court will rule later on the local cases and others heard Wednesday.

In February, a Lancaster County District judge dismissed a lawsuit filed by the mother of a 5-year-old boy sexually assaulted in a bathroom at Arnold Elementary School in 2005.

The mother alleged the school should have prevented the assault, but District Judge Paul Merritt said Lincoln Public Schools met its duty of taking "reasonable steps to protect against foreseeable acts of violence on its premises."

Lincoln attorney Vince Powers appealed on behalf of the mother.

On Wednesday, Powers told the Supreme Court that Joseph Siems, who pleaded guilty to sexual assault in the case and is serving 20 to 30 years in prison, was a creepy-looking guy whose presence at the school should have raised all kinds of alarms.

In fact, Powers said, the school was negligent in letting Siems get in the door in the first place.

"He never should have gotten past the office" Powers said. "... He should have been followed and a Code Red called. ... There is a duty to not let the stranger in."

Attorney John Guthery, representing Lincoln Public Schools, noted that all doors to the grade school at 5300 W. Knight Drive were locked except the front door, and that Siems was escorted to the bathroom by a teacher who made sure no students were inside.

Guthery also said the attack by a stranger was not reasonably foreseeable.

"But you have safety plans in place against it, so isn't that foreseeable?" asked Judge William Connolly.

Added Judge John Wright: "The reason you have all of these plans is because it was reasonably foreseeable."

In the e-mail free speech case, Eugene Volokh, a UCLA Law School professor who specializes in First Amendment law, argued e-mails do not represent a breach of peace and are allowed as free speech.

"Words can be fighting words only if they tend to provoke a breach of peace," said Volokh, who is appealing former University of Nebraska-Lincoln student Darren Drahota's disturbing the peace conviction for e-mails he sent to then-UNL professor and now-state Sen. Bill Avery of Lincoln.

Court documents show the series of messages between Drahota, who is politically conservative, and Avery, a liberal, devolved into a name-calling affair.

Avery asked Drahota to stop, and he did for four months, but then sent two in June 2006 from averylovesalqueda@yahoo.com.

Avery called the police, and Drahota ended up paying a $250 fine for disturbing the peace. His conviction was upheld by the Nebraska Court of Appeals.

In taking the case, Volokh wrote it appears to be the first published decision allowing criminal punishment for nonthreatening but insulting speech of a political nature to an elected official or candidate for office. He is representing Drahota for free.

Supreme Court judges weighed in often as Volokh and George Love of the Nebraska Attorney General's Office presented their arguments.

"Isn't e-mail or voicemail that you can walk away from different than following someone down the street?" asked Judge John Gerrard.

"Can't you delete e-mail without even looking at it?" asked Wright.

"People do that all the time," responded Volokh, getting a laugh from judges and observers.

But Love argued Drahota changed the e-mail address from which he wrote, so Avery wouldn't have known who the message was from.

He also argued Avery has a right to be left alone.

Does he? the judges asked.

"Can a public official do that? Say I want no more contact" asked Chief Justice Mike Heavican.

The high court also heard arguments in a case involving the city of Lincoln's failure to provide an up-to-date flood plain map for a development called Cardwell Woods. Several families built upscale homes there only to learn later their property was at risk from flooding.

Reach Catharine Huddle at 473-7222 or chuddle@journalstar.com.

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