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

Last months I blogged about State v. Brewington, an Indiana Court of Appeals decisions that I thought was inconsistent with the First Amendment. I’m pleased to say that today (with the help of local counsel Jim Bopp and Justin McAdam) I filed a pro bono amicus brief urging the Indiana Supreme Court to consider the case. The brief was filed on behalf of Eagle Forum, the Hoosier State Press Association Foundation, the Indianapolis Star, the Indiana Association Of Scholars, the Indiana Coalition for Open Government, the James Madison Center for Free Speech, Nuvo (Indy’s Alternative Voice), and Professors James W. Brown, Anthony Fargo, Sheila S. Kennedy — all Indiana professors of journalism or public policy — as well as myself. Many thanks to all the others for agreeing to sign on, to Jim and Justin for their pro bono help, and to Mayer Brown LLP, the firm with which I’m a part-part-part-part-time academic affiliate, for paying the various filing and printing costs.

In any event, I thought I’d blog the amicus brief, in parts, since it discusses some questions that I think are of broader interest. Here’s a quick summary of the intimidation charge on which we are focusing (the brief doesn’t discuss the other charges):

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.

And here is the first part of our amicus brief:

I. Ind. Code § 35-45-2-1 Should Be Interpreted to Exclude Speech That Condemns a Person’s Public Actions or Uses the Threat of Such Condemnation to Prevent Future Actions

A. The First Amendment Protects Threats of Public Condemnation

I.C. §§ 35-45-2-1(a) & (c) provide, in relevant part,

(a) A person who communicates a threat to another person, with the intent:
(1) that the other person engage in conduct against the other person’s will; [or]
(2) that the other person be placed in fear of retaliation for a prior lawful act …
commits intimidation, a Class A misdemeanor.
….
(c) “Threat” means an expression, by words or action, of an intention to:
([1-5]) unlawfully injure the person threatened or another person, or damage property [or engage in a range of other unlawful conduct]; …
(6) expose the person threatened to hatred, contempt, disgrace, or ridicule; [or]
(7) falsely harm the credit or business reputation of the person threatened ….

“Placed in fear of retaliation” in subsection (a)(2) is not defined, but presumably refers to fear of being subjected to one of the actions in subsection (c) as a result of one’s prior lawful act. For instance, it is intimidation to threaten to unlawfully injure one’s ex-girlfriend because she broke off the relationship, if the intent is to place her in fear of being unlawfully injured in retaliation for the breakup. This is indeed how the Court of Appeals interpreted “retaliation.” State v. Brewington, 2013 WL 177923, *8 (Ind. Ct. App. Jan. 17, 2013) (“the State alleged that Brewington’s actions were committed with the intent of placing Judge Humphrey in fear by threatening him in retaliation for issuing the divorce decree, and that he intended to threaten by exposing the judge to hatred, contempt, disgrace, or ridicule”).

Here is a summary of how the provisions interact:



(a)(1)
(demand that target “engage in conduct against [his] will”)
(a)(2)
(threat of “retaliation for a prior lawful act”)
c(1-5)
(threat of unlawful conduct)
Coercive threat of unlawful behavior Simple threat of unlawful behavior
c(6)
(threat of exposing target to hatred, contempt, disgrace, or ridicule)
Usually blackmail, though sometimes constitutionally protected threats to publicize and condemn behavior if the behavior continues (or is not remedied) Constitutionally protected threats to publicize and condemn behavior
c(7)
(threat of falsely harming credit or business reputation)
Coercive threat of a certain kind of defamation Simple threat of a certain kind of defamation

The statute is often entirely sound, as in the first row of the table. But, if interpreted literally, the statute would cover two common, and constitutionally protected, forms of speech (italicized in the table). One form consists of threats that, if the target engages does something allegedly harmful — or fails to remedy harms caused by a past action — the speaker will publicly condemn that action. This will be discussed in Part I.B.

The other form, involved in this case, consists of simple threats that one will harshly and publicly criticize the target’s past actions, such as:

  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.”

These threats could be express (“I’m outraged by your conduct, and I’ll publicly harshly condemn it and ridicule it”) or implied (such as a sequence of articles, broadcasts, leaflets, or posts, each implicitly threatening further statements). And these threats would be covered by subsections (a)(2) and (c)(6), because they would involve “communicat[ing] a threat” of exposing the target to “hatred, contempt, disgrace, or ridicule,” intending “that the [target] be placed in fear of retaliation” through such “hatred, contempt, disgrace, or ridicule” for his prior lawful act. [Footnote: The statute covers speech about anyone, though it provides a higher penalty for speech about judges, I.C. § 35-45-2-1(b)(i). In any event, speech about judges is as protected as speech about other officeholders. The First Amendment “gives ‘[j]udges as persons . . no greater immunity from criticism than other persons.’” Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 839 (1978).] But each of these statements would nonetheless be protected by the First Amendment.

Two leading United States Supreme Court precedents make this clear. In Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971), a civil rights organization was upset about real estate agent Keefe’s behavior — behavior that was legal but, in the views of the Organization, wrong (because it promoted white flight). Organization members therefore leafleted in Keefe’s home town, Westchester, and expressly threatened more such leafleting unless Keefe agreed to change his practices; one leaflet said, “When [Keefe] signs the agreement, we stop coming to Westchester.” Id. at 417. Yet the Court ruled that the speech remained constitutionally protected:

The claim that the expressions were intended to exercise a coercive impact on respondent does not remove them from the reach of the First Amendment. Petitioners plainly intended to influence respondent’s conduct by their activities; this is not fundamentally different from the function of a newspaper. Petitioners were engaged openly and vigorously in making the public aware of respondent’s real estate practices. Those practices were offensive to them, as the views and practices of petitioners are no doubt offensive to others. But so long as the means are peaceful, the communication need not meet standards of acceptability.

Id. at 419 (internal citations omitted).

Similarly, in NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), the NAACP organized a boycott by black residents of white-owned businesses. To make the boycott effective, NAACP members read the names of nonparticipating blacks at church and published them in a local newspaper. Id. at 909. Yet though this too threatened exposing people to contempt and disgrace in retaliation for a lawful act — shopping at white-owned stores — the Court held the speech was protected: “Petitioners admittedly sought to persuade others to join the boycott through social pressure and the ‘threat’ of social ostracism. Speech does not lose its protected character, however, simply because it may embarrass others or coerce them into action.” 458 U.S. at 909-10.

I.C. § 35-45-2-1 is thus overbroad to the extent that subsection (a)(2) is combined with (c)(6), as it was in this case. The Court of Appeals disagreed, holding that “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,” namely intent “to place the victim in fear by a threat.” 2013 WL 177923, *9. But this is inconsistent with Organization for a Better Austin and NAACP v. Claiborne Hardware, which held that speech intended to place the victim in fear of ostracism or disgrace is indeed constitutionally protected criticism.

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. This Court should therefore grant transfer, and hold that subsection (a)(2) cannot be combined with (c)(6). Informing someone (explicitly or implicitly) that one will publicly criticize him for his prior lawful act, with the intent to expose him to hatred, contempt, disgrace, or ridicule, cannot be criminalized.

Coming up shortly: The blackmail discussion, and the false statement vs. figurative statement discussion.