Liberals and Conservatives Rally Behind First Amendment Defense against Intimidation Statute

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News outlets, media advocates, conservative and liberal groups, and First Amendment scholars have joined in filing an amicus brief (PDF) to the Indiana Supreme Court, claiming that the state’s criminal law barring intimidation violates the First Amendment. The criminal case (PDF) began with the defendant’s divorce proceedings.

When Daniel Brewington’s ex-wife filed for divorce, the court assigned two psychologists to evaluate custody options; they recommended assigning Brewington’s ex-wife sole custody and Brewington visitation rights. The Court of Appeals of Indiana stated that Brewington responded with “a torrent of abusive letters demanding that Dr. Connor release his entire file to him, withdraw the evaluation, and withdraw from the case.” He accused the doctors of “dishonest, malicious, and criminal behavior” and “unethical and criminal practices.” He also began blogging and using established Web sites to communicate messages to the same effect.

Judge James D. Humphrey, finding Brewington to be “irrational, dangerous and in need of significant counseling,” assigned Brewington’s ex sole custody, with Brewington receiving no visitation rights until a court-appointed mental-healthcare provider determined that Brewington posed no danger to himself, his ex, or his children.

Brewington filed a motion for relief from judgment, claiming that Judge Humphrey had conspired to obstruct Brewington’s access to evidence, “conducted himself in a willful, malicious, and premeditated manner,” and “caused irreparable damage to [the children through] Court mandated child abuse.” He also asserted that he would post the pleading on his blog and would distribute it through other outlets, along with a letter urging readers to send comments to “the Ethics & Professionalism Committee Advisor located in Dearborn County,” identifying that official as Judge Humphrey’s wife and including their home address. Mrs. Humphrey’s duties did not include review of judicial conduct. A number of Brewington’s readers followed up on his solicitation.

Following the divorce, Brewington posted fifteen blog or Facebook entries about one of the evaluating psychologists, including a claim that he used custody evaluations “as a means to gain some kind of perverted sexual stimulation.” He posted nine entries about Judge Humphrey, calling him “corrupt,” accusing him of “unethical/illegal behavior,” calling him a child-abuser, and writing, “[T]his is like playing with gas and fire, and anyone who has seen me with gas and fire knows that I am quite the accomplished pyromaniac.”

Brewington was convicted of several misdemeanor and felony offenses: three counts of intimidation and one count each of obstruction of justice, perjury (for falsely stating that he did not know that Mrs. Humphrey was Judge Humphrey’s wife). The Court of Appeals upheld four of the convictions, including one count of intimidation.

The Indiana statute prohibits “communicat[ing] a threat to another person, with the intent . . . that the person be placed in fear of retaliation for a prior lawful act. . . .” Humphrey apparently did feel threatened: He took a training course on using a gun, installed a home-security system, and received police escorts to and from work. Where threats are concerned, this seems largely normal.

UCLA law professor and blogger Eugene Volokh, who gathered the parties to the amicus brief, identifies part of the problem as the statute’s definition of “threat”: Beyond threats of violence, it includes threats to “expose the person threatened to hatred, contempt, disgrace, or ridicule. . . .”

As reported by USA Today, Volokh’s concern is that the statute, and this appellate holding in particular, “endangers the free speech rights of journalists, policy advocates, politicians, and ordinary citizens. . . . If the Court of Appeals decision is allowed to stand, then much criticism of legislators, executive officials, judges, businesspeople, and others — whether by newspapers, advocacy groups, politicians, or other citizens — would be punishable.”

The amicus brief (PDF) identifies a number of acts that we might be alarmed to see a statute criminalize:

  1. a columnist’s writing, “Legislator A’s vote on issue B is ridiculous, and I intend to ridicule him until his constituents view him with contempt”;
  2. an advocacy group's picketing a store with signs saying, “The store owner's decision to stock product C is disgraceful, and we hope our speech will expose the owner to disgrace and ostracism”;
  3. a politician’s saying, “The incumbent’s decision D is so foolish that, once I publicize it, the incumbent will be the laughingstock of the state.”
  4. a blogger’s writing, as in this case, “The judge who restricted my visitation rights was in effect abusing my children through the legal process,” with the implied statement, “and I will keep publicly criticizing the judge’s actions.”

The Court of Appeals denied that the conviction violated Brewington’s First Amendment rights (PDF):

“The First Amendment protects the right of citizens to criticize government decisions with which they disagree. . . . However, the conduct that is criminalized here, communicating a threat to a victim to place the victim in fear of retaliation for a prior lawful act, necessarily falls outside the realm of protected criticism of government decisions due to the requirement of criminal intent.”

The ACLU of Indiana has filed a separate brief. The state supreme court has not yet granted certiorari.

Posted by Howard M. Lintz (Howie) on Sun. March 3, 2013 7:43 AM
Categories: Intimidation

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