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.