I blogged last week about Brewington v. State (Ind. Ct. App. Jan. 17, 2013),
a decision that strikes me as unconstitutional, and as quite perilous
for Indiana speakers: It basically concludes that harshly and repeatedly
criticizing someone — in that case, a judge, but the law applies
equally to legislators, other government officials, business leaders,
and others — for that person’s past conduct can be criminally
prosecuted. To oversimplify slightly,
1. Dan Brewington, a disgruntled child custody litigant in Indiana,
posted various harsh criticisms of the judge who awarded custody to
Brewington’s wife. (Brewington also did some other things, quite
possibly criminal things, which the opinion discusses, but I will set
them aside for now; the brief will not focus on them.)
2. He was then prosecuted for the crime of “intimidation,” which
consists (in relevant part) of “communicat[ing] a threat to another
person” — including a threat to expose the person “to hatred, contempt,
disgrace, or ridicule” — “with the intent ... that the other person be
placed in fear of retaliation for a prior lawful act.”
3. The Indiana Court of Appeals affirmed
the conviction, apparently viewing the sequence of harsh criticisms as a
continuing threat of further such criticisms, and thus a threat to
expose the judge “to hatred, contempt, disgrace, or ridicule” in
retaliation for the judge’s past decisions.
4. In the process, the court stressed that the law covers expressions
of opinion and even communication of true statements about what someone
did. And since the statute isn’t limited to speech about judges
(there’s a heightened punishment for such speech, but the law itself
covers speech about any person), it would apply to similar harsh
criticisms of legislators, business figures, university officials, and
so on.
This, I think, clearly violates the First Amendment, and has a
potentially very broad sweep. The law doesn’t just apply to disgruntled
litigants, but also to newspaper columnists, advocacy groups,
politicians, and so on. Under the court’s view, someone who goes to a
legislator and says, “If you vote for this law [or because you voted for
this law], we’re going to condemn you so much that your constituents
will have contempt for you and vote you out of office,” would be guilty
of a crime. Indeed, someone who simply keeps writing harshly critical
columns about a legislator’s actions, without an overt threat of future
such columns, would be guilty of a crime, too.
Brewington is asking the Indiana Supreme Court to review the case,
and I think it would be helpful to have a friend-of-the-court brief
supporting that request, and alerting the Indiana Supreme Court to the
broader danger posed by the Indiana Court of Appeals opinion. (The
Indiana Supreme Court is entitled to pick and choose which Court of
Appeals cases it reviews, so the brief needs to persuade the Indiana
Supreme Court to focus its time on attention on this case.) I plan to
write that brief, pro bono.
I already have local counsel lined up, and a likely amicus
organization, but I’d like to have more, including those generally seen
as on the left, those generally seen as on the right, and those
generally seen as elsewhere. If you’re involved with an Indiana
advocacy, political, or journalist group — or for that matter an Indiana
newspaper, whether professional or student-run — and you think the
organization might be interested in joining, please let me know.
Thursday, January 31, 2013
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