Indiana Attorney General’s Office Agrees: Indiana Supreme Court Should Review the Brewington Case

Readers might recall the Brewington case, in which the Indiana Court of Appeals basically held that harshly criticizing people for their past conduct could constitute the crime of “intimidation.”

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. Brewington then petitioned the Indiana Supreme Court to hear the case, and I filed an amicus brief on behalf of various media organizations, advocacy organizations, and Indiana academics, supporting the petition as to this intimidation conviction. (Brewington’s petition also objected to Brewington’s convictions of other crimes, but our amicus brief and my blogging have not focused on that.)

Yesterday, the Indiana Attorney General’s office filed its response with the Indiana Supreme Court, agreeing that the Indiana Supreme court should consider the matter, and describing the Indiana Court of Appeals decision as “overbroad.” That is very good, I think. The amici that I represent want to see the Indiana Court of Appeals decision reversed, because it broadly threatens free speech in Indiana. The AG’s position here sends the same message.

(Other parts of the AG’s position — its view that Brewington’s conviction should nonetheless be affirmed on other grounds — are, I think, mistaken; I hope to blog about this shortly, though speaking only for myself, and not for the amici.)