State v. Brewington and Figurative Speech

Here’s the last portion of our State v. Brewington amicus brief:

II. The Court of Appeals Erred in Concluding that Brewington’s Speech Was Knowingly False, an Error That Will Work Mischief in Future Defamation Cases

To the extent that the Court of Appeals defended its decision by casting Brewington’s speech as a knowingly false statement of fact, the court’s holding was inconsistent with United States Supreme Court decisions, and set a dangerous precedent about what it means for speech to be knowingly false. The Court of Appeals concluded that § 35-45-2-1 equally covers true and false speech. 2013 WL 177923, *8. But the court also concluded that, “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,” id. at *9:

[Brewington’s] 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,” State’s Ex. 160, and accused him of engaging in “unethical/illegal behavior.” State’s Ex. 170.

… Judge Humphrey, in the exercise of lawful judicial discretion and out of concern over Brewington’s history of “irrational behavior,” State’s Ex. 140, p. 8, 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.

Id. at *9.

But Brewington’s statements were indeed hyperbolic and constitutionally protected expressions of opinion. No reasonable reader would understand the posts as accusing Judge Humphrey of literally “abus[ing] children” in the sense of beating them or of having an “intent[]” to physically harm children. In context, Brewington was clearly just arguing that Judge Humphrey’s actions were unjustified and harmful to Brewington’s children — both matters of Brewington’s opinion.

The United States Supreme Court has long recognized that accusations can often be figurative and hyperbolic, and can be viewed by reasonable readers as statements of opinion and not as factual assertions, even if they literally use the names of crimes. In Greenbelt Cooperative Publishing Ass’n, Inc. v. Bresler, 398 U.S. 6 (1970), a developer had won a defamation verdict based on articles in which his negotiating conduct was described as “blackmail.” The United States Supreme Court overturned the verdict, reasoning:

It is simply impossible to believe that a reader who reached the word “blackmail” in either article would not have understood exactly what was meant: it was Bresler’s public and wholly legal negotiating proposals that were being criticized. No reader could have thought that either the speakers at the meetings or the newspaper articles reporting their words were charging Bresler with the commission of a criminal offense. On the contrary, even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered Bresler’s negotiating position extremely unreasonable.

Id. at 14 (footnote omitted). The same is true here: No reader could have thought that “Brewington accused Judge Humphrey of child abuse,” 2013 WL 177923, *9, in any literal sense.

Likewise, in Old Dominion Branch No. 496, Nat’l Ass’n of Letter Carriers v. Austin, 418 U.S. 264, 268, 284 (1974), the Court concluded that a union’s characterization of strikebreakers as committing “treason” would have been read not as referring to the crime of treason but rather as having been used “in a loose, figurative sense to demonstrate the union’s strong disagreement with the views of those workers who oppose unionization.” Likewise, a reasonable reader would see Brewington’s “child abuse” statements as having been used “in a loose, figurative sense to demonstrate [Brewington]’s strong disagreement” with Judge Humphrey’s decision.

Nor does it matter that the Court of Appeals believed that the visitation restrictions on Brewington were “reasonable” and made “out of a desire to protect the children’s well-being” — just as it would not have mattered in Greenbelt whether the Justices saw Bresler’s negotiating conduct as “reasonable” or made out of a desire to advance the public’s well-being. Brewington’s opinion that Judge Humphrey’s actions were wrong is constitutionally protected whether or not others think those actions were reasonable. “Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40 (1974).

The same is true of Brewington’s statements that “[p]ublic awareness is the only way to fight this kind of corruption,” Exh. 171, at 7, and “[i]n case there is any doubt about the unethical/illegal behavior of Judge Humphrey and Dr. Edward J. Connor,” Exh. 170, at 6. Reasonable readers, reading the statements in context, would see them as simply representing Brewington’s opinion that what happened in his case was “corrupt” and “unethical” in the sense of departing from justice and proper conduct as Brewington saw it.