Harshly Criticizing Judges (or Others) for Their Past Conduct = Crime?

That’s what Brewington v. State (Ind. Ct. App. Jan. 17, 2013) appears to hold. The defendant may well have seemed like a potentially dangerous person, and he was also convicted of perjury and other crimes; moreover, the government argued that he threatened violence and not just criticism. But the court’s reasoning, which focused on the defendant’s continuing harsh criticism, would apply to many other defendants in the future. This strikes me as quite troubling.

Daniel Brewington was involved in a contentious child custody dispute; Judge James D. Humphrey ruled against him in this dispute, giving sole custody to Brewington’s wife, limiting Brewington’s visitation, and finding Brewington “to be irrational, dangerous and in need of significant counseling.”

After this decision, Brewington posted various items online “discussing Judge Humphrey, in which he described the judge as ‘corrupt,’ and accused him of engaging in ‘unethical/illegal behavior.’ He also repeatedly referred to the judge as a child abuser.” Brewington was then prosecuted for, among other things, violating Indiana Code § 35-45-2-1, which (in relevant part) criminalizes as “intimidation”

communicat[ing] a threat to another person, with the intent … that the other person be placed in fear of retaliation for a prior lawful act,

and defines “threat” to include threats of

expos[ing] the person threatened to hatred, contempt, disgrace, or ridicule.

Brewington was convicted, and the court of appeals affirmed, concluding that the speech was criminally punishable, even without any need for the state to prove that Humphrey’s criticisms of the judge were false:

At trial, the State alleged that Brewington communicated a threat to Judge Humphrey, with the intent of placing him in fear of retaliation for issuing the divorce decree in this case…. [T]he State argued that Brewington issued several different types of threats …. We focus our analysis on whether Brewington threatened Judge Humphrey by expressing an intent to expose him “to hatred, contempt, disgrace, or ridicule.” [According to the State’s appellate brief, this threat consisted of his posts calling Humphrey a “child abuser” after the decision, and not of any statement such as, “if you decide against me, I will publicly label you a child abuser." -EV] …

[T]he offense of intimidation in Indiana shares common language with past statutes outlawing blackmail. See Meek v. State, 205 Ind. 102 (1933) (quoting a statute defining blackmail, in relevant part, as “accusing or threatening to accuse[ ] any person of any crime punishable by law, or of any immoral conduct which, if true, would tend to degrade and disgrace such person, or in any way subject him to the ridicule or contempt of society”)…. [T]he crime consists of threatening the victim with the intention of placing the victim in fear for a prior lawful act. The truthfulness of the threatened disclosure is not necessarily relevant to prosecution because the harm, placing a victim in fear, occurs whether the publicized conduct is true or false….

[W]e conclude that it is irrelevant whether the conduct Brewington intended to disclose to the public actually occurred or was an outright fabrication…. [T]he State was not required to provide evidence that Brewington’s public statements about Judge Humphrey were knowingly false.

The court also concluded that Brewington’s statements were indeed false, and knowingly false:

Even if the State was required to prove that Brewington knew his internet postings and other communications about Judge Humphrey were false, there is ample evidence of Brewington’s knowledge. His public comments went well beyond hyperbole and were capable of being proven true or false. Over the course of at least a year, Brewington repeatedly called Judge Humphrey a “child abuser.” State’s Ex. 170; see also State’s Ex. 162 (“Judge Humphrey’s actions constitute child abuse”), State’s Ex. 168 (“abuser of children”), State’s Ex. 173 (Judge Humphrey “abuse[s] children who are part of the family court system”). Brewington also called Judge Humphrey “corrupt,” and accused him of engaging in “unethical/illegal behavior.”

Brewington argues he was merely stating his opinion that, in constraining his right to see his children, Judge Humphrey was essentially committing child abuse. However, it is clear from the divorce decree that Judge Humphrey, in the exercise of lawful judicial discretion and out of concern over Brewington’s history of “irrational behavior” imposed reasonable visitation restrictions upon Brewington out of a desire to protect the children’s well-being. Only by willfully misinterpreting the terms of the divorce decree in bad faith could one argue that Judge Humphrey’s conduct constituted an intentional act to harm Brewington’s children. Thus, even if the State was required to prove that Brewington knew his public statements about Judge Humphrey were false, there was ample evidence from which the jury could have concluded that Brewington accused Judge Humphrey of child abuse and professional misconduct while knowing that the accusations were false.

I think this too is a mistake on the court’s part, because the statements — or at least the great bulk of them — were likely to be seen by readers as opinions (however biased and unsound) about what the judge’s actions were morally tantamount to, and not factual allegations. But in any event, the court had made clear by this point that its analysis did not turn on this, and that Brewington’s statements could be punished regardless of whether they were true, so long as they were a continuing threat of exposing the judge to “hatred, contempt, disgrace, or ridicule” based on his past actions.

Finally, the court rejected a First Amendment defense, reasoning, among other things, that,

The First Amendment protects the right of citizens to criticize government decisions with which they disagree, and that right cannot be taken lightly. 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. That is, the statute alleges, and the State must prove, that the defendant intended to place the victim in fear by a threat. Such conduct is of no value to public discourse and is, in fact, harmful to the administration of justice when the victim is a judicial officer. We cannot conclude that Indiana Code section 35–45–2–1 substantially prohibits activities protected by the First Amendment, and Brewington’s claim fails. Consequently, we affirm Brewington’s conviction for intimidation of Judge Humphrey.

As I’ve said above, I think this decision is wrong, and quite dangerous. It’s not limited to blackmail of the “do this or I’ll reveal this secret about you” sort; indeed, this speech involved neither an attempt to coerce the judge (the speech happened after the judge’s actions) nor a revelation of secrets. It would also apply equally to speech that harshly and repeatedly condemns legislators for their “prior lawful act[s],” as well as speech that condemns others — journalists, business leaders, and the like — at least so long as the speech seems to carry within it the “threat” of more speech. A very bad result, which I hope the Indiana Supreme Court reviews and reverses.