Supreme Court draws distinctions in blogger Brewington case

Blogger Daniel Brewington’s convictions for intimidating Dearborn Circuit Judge James Humphrey and obstruction of justice were upheld by the Indiana Supreme Court Thursday, but under different reasoning than the Indiana Court of Appeals applied.

Justices held that Brewington’s actions arising from being stripped of his children’s custody placed targets of his contempt in fear for their safety. The court found the appeals panel failed to distinguish between fear for one’s reputation and fear for one’s safety in affirming some of Brewington’s convictions.

“Many of Defendant’s statements, at least when viewed in isolation, threatened only to harm the victims’ reputations — hyperbolically accusing them of “child abuse” and the like. To the extent those statements were aimed at a public official or involved an issue of public concern, they are subject to the steep constitutional ‘actual malice’ standard for defamatory speech, and the Court of Appeals erred in relying on them to support … convictions," Justice Loretta Rush wrote in a unanimous 35-page opinion.

However, Brewington’s “statements and conduct, understood in their full context, clearly were meant to imply credible threats to the victims’ safety,” Rush wrote in Daniel Brewington v. State of Indiana, 15S01-1405-CR-309. The case drew national attention for its First Amendment implications after the Court of Appeals’ ruling.

At the center of the case are posts on family court blogs in which Brewington took aim at Humphrey, who presided in his custody case, Humphrey’s wife, and a psychologist who served as a custody evaluator in Brewington’s case. The posts for which Brewington was prosecuted included comments that Humphrey was a child abuser for stripping Brewington of custody and that Humphrey was playing with fire and Brewington was “an accomplished pyromaniac.”

“The ‘true threat’ inquiry requires reference to all the contextual factors — one of which is the anger and obsessiveness demonstrated even by the protected portions of Defendant’s speech. And Defendant had also demonstrated mental disturbance, volatility, violence, and genuine dangerousness directly to (Humphrey and the custody evaluator) during his years-long vendetta against them.

“In that context, Defendant’s conduct, including showing his victims against a backdrop of obsessive and volatile behavior that he knew where they lived, was clearly intended to place them in fear — not fear of merely being ridiculed, but fear for their homes and safety, the essence of an unprotected ‘true threat,'” the court held.

 “We therefore grant transfer and affirm Defendant’s convictions for intimidating the Judge and obstruction of justice as to the Doctor, finding the evidence sufficient to support those convictions under Indiana Code section 35-45-2-1(c)(1)-(3) without implicating constitutional free-speech protections. As to reversing Defendant’s intimidation convictions involving the Doctor and the Judge’s wife, and affirming his perjury conviction, we summarily affirm the Court of Appeals.

The opinion discusses at length Brewington’s actions toward the judge and doctor and his behavior in and out of the courtroom which the court found, in the totality of the circumstances, gave rise to credible fears for safety.

“There would be no doubt about that conclusion if Defendant, all in a single episode, had violently shouted and slammed piles of books in the courtroom, shaken his fist at the Judge and the Doctor, and told them, ‘You crooked child abusers! I’m a pyromaniac, I have guns and know how to use them, I’d like to beat you senseless, I know where you live, and I’m going to hold you accountable!’,” Rush wrote.

“Under those circumstances, it would be obvious that Defendant was making an unprotected ‘true threat’ against the victims, even if the phrase ‘crooked child abusers’ was protected speech. Defendant’s threats neither lose force, nor gain protection, merely because he built them up over the course of a years-long campaign of harassment.”

Rush wrote that Brewington’s First Amendment defense glossed over his “statements and conduct that gave rise to more sinister implications” for the safety of his targets. Citing the landmark 1964 U.S. Supreme Court ruling New York Times v. Sullivan, Rush wrote the court had a duty to “make an independent examination of the whole record, so as to assure ourselves that the [conviction] does not constitute a forbidden intrusion on the field of free expression.”

Brewington also argued that failure to instruct the trial court jury on the actual malice standard was error. The justices agreed that it was, but no relief was warranted because Brewington’s trial counsel pursued a strategic “all or nothing” First Amendment defense. “His general-verdict and instructional complaints were therefore invited error, not fundamental error,” the court held.

After almost two years in the Department of Correction, Brewington was freed Sept. 5, 2013, just ahead of oral arguments in his case.

“(W)e find ample evidence of true threats to support Defendant’s convictions for intimidating the judge and his attempted obstruction of justice regarding the psychologist — and find that the general-verdict and instructional errors he complains of were invited error, not fundamental error or ineffective assistance of counsel. On all other counts, we summarily affirm the Court of Appeals,” the court held.

Noted First Amendment scholar and UCLA Law professor Eugene Volokh argued on behalf of a dozen amici who feared that if the Brewington verdict affirmed by the Court of Appeals stood, it would constitute a chilling effect on speech, opinions expressed in the media about public officials and political speech.

These amici presented briefs in Brewington’s case: the American Civil Liberties Union of Indiana, Eagle Forum, Hoosier State Press Association, Indianapolis Star, Indiana Association of Scholars, Indiana Coalition for Open Government, James Madison Center for Free Speech, NUVO Newsweekly, former IUPUI School of Journalism Dean James W. Brown and IUPUI professors Anthony Fargo and Sheila S. Kennedy.•

“I can’t speak to whether this decision is correct given the trial record and the state of Indiana ‘invited error’ law,” Volokh wrote on his blog The Volokh Conspiracy. “But I am glad that the Indiana Supreme Court recognized and reversed the legal error in the Indiana Court of Appeals opinion — the thing that my clients (who were the amici, not the defendant) were concerned about.

“Threatening to harshly criticize people’s actions, and thus to expose them to ridicule and disgrace (at least outside the special case of blackmail) is legal again in Indiana,” Volokh wrote.