Tag Archives | State v. Brewington

State v. Brewington Oral Argument

I just returned last night from Indianapolis, where I had the honor and pleasure of arguing on behalf of amici in State v. Brewington; many thanks to the defendant’s lawyer, Michael Sutherlin, for agreeing to split his time with me, and both to Michael and his associate, Sam Adams, for all their help on the case. Thanks also to retired Justice Frank Sullivan, Patricia McMath, Joel Schumm, Lahny Silva, and Geoffrey Slaughter, who sat on a moot court for Mr. Sutherlin and me (organized by the Indiana Appellate Institute). I found the moot court to be tremendously useful.

All in all, it was an excellent trip, which also included a debate organized by the IU-Indianapolis law school Federalist Society, a talk to the Federalist Society Lawyers’ Division Indianapolis chapter, and a lovely dinner with some IU professors. (I highly recommend the restaurant Cerulean.)

And as to the main event, I very much enjoyed doing the oral argument. I enjoyed preparing for the oral argument. I enjoy having had the oral argument. But the 30 minutes before the oral argument — not so much. [...]

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Hoosiers

When writing the Brewington amicus brief, which we filed before the Indiana Supreme Court, I used the term “Indianan” in my first draft. Yes, I’d heard of “Hoosier,” but I thought it was a jocular colloquialism, and “Indianan” was the Proper Dignified Lawyerly Way to say it.

Boy, was I wrong, as Michael Sutherlin, Dan Brewington’s lawyer (who has done an excellent job in the case, ably assisted by his associate Sam Adams), pointed out. Indeed, when I checked on Westlaw, I found only one case in the Indiana Cases database mentioning “Indianan” — and that was a typo. I found 192 cases mentioning “Hoosiers,” even limiting it to the plural so as to avoid various organizational names that contain “Hoosier”; the great bulk of these cases indeed referred to Indiana residents.

Interestingly, outside Indiana state courts and federal district courts the ratio was closer, 9 “Hoosiers” — counting only courts using that term to refer to residents of Indiana — to 7 “Indianans.” But I was filing in an Indiana court, and when in Indianapolis, do as the …. [...]

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Indiana Supreme Court Agrees to Hear Oral Arguments in Brewington

Readers of this blog may remember Brewington v. State, an Indiana Court of Appeals decision that I’ve argued is inconsistent with the First Amendment. Brewington asked the Indiana Supreme Court to review the case, and I filed (with the help of local counsel Jim Bopp and Justin McAdam) a pro bono amicus brief supporting that argument, 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). Today the Indiana Supreme Court announced that it will hear oral argument — likely on Sept. 12 — on the matter.

Here’s a quick summary of the intimidation charge on which our brief focused.

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 [...]

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Defendant’s Reply Brief in State v. Brewington

Readers who were interested in the posts about State v. Brewington (the most recent one is here) might also want to see the reply brief.

At this point, the case is teed up for the Indiana Supreme Court — they can decide to grant transfer (which means reviewing the Indiana Court of Appeals decision), hold oral argument on whether to grant transfer, or deny transfer. Readers may recall that I filed a friend-of-the-court brief supporting transfer, on behalf of several organizations and academics, and I hope the Indiana Supreme Court agrees. [...]

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General Verdicts That Might Be Based on Either an Unconstitutional Theory or a Constitutional One

As I note in the post below, the Indiana Attorney General’s office agrees (see its brief) that the State v. Brewington Indiana Court of Appeals decision was unsound. But the AG’s office argues that Brewington’s conviction should still be affirmed. This illustrates a broader issue that I thought was worth briefly discussing, though note that I’m talking about this in my capacity as an academic, and not as a lawyer for the amici that I represent in this case.

Here’s the basic matter, though somewhat stylized to highlight the interesting legal question. (For more details, see this post.) Brewington was prosecuted for “intimidation” of Judge Humphrey, which consists in relevant part of threatening the judge with retaliation for the judge’s past lawful act (his decision in Brewington’s case).

But what does “threatening” mean? Under the Indiana intimidation statute, threatening is defined to include any of several things, including (A) threatening violence or (B) threatening to expose the target to hatred, contempt, disgrace, or ridicule (which I’ll just shorten to “disgrace”). And the jury was instructed that, to find Brewington guilty, it needed to find a threat, defined in precisely those statutory terms — a threat of violence, or a threat of exposure to disgrace, or one of several other kinds of threat. The jury thus could have found Brewington guilty based on a conclusion that he threatened violence or based on a conclusion that he threatened to expose the judge to disgrace. Since the jury just returned a general verdict, we can’t tell which theory the jury followed.

The Indiana AG’s brief seems to agree that the Indiana Court of Appeals’ decision, which upholds the conviction based on a conclusion that Brewington threatened exposure to disgrace, is “overbroad.” Our amicus brief argued that a threatened-exposure-to-disgrace theory would [...]

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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 [...]

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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

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State v. Brewington and the Blackmail Analogy

Here’s the second part of our amicus brief, which deals with the Court of Appeals’ analogy between general threats to harshly criticize someone and blackmail:

B. The Court of Appeals’ Blackmail Analogy Is Unsound

The Court of Appeals defended its reasoning by analogy to blackmail. 2013 WL 177923, *8. But, while properly crafted blackmail bans are constitutional, United States v. Hutson, 843 F.2d 1232, 1235 (9th Cir. 1988), the blackmail analogy is unsound here.

First, blackmail “does not consist in threatening to charge an innocent party with crime, or with degrading and disgraceful immoral conduct, but consists in threatening to make such accusation, with the intent to extort or gain from any person his chattels, money, etc.Eaton v. State, 238 Ind. 434, 436, 151 N.E.2d 292, 293 (1958). That element is absent from subsection (a)(2), under which Brewington was prosecuted.

And this element of intent to get property (or coerce other action) is significant for First Amendment purposes, because it makes the threat more than just speech — it makes the threat an attempt to induce an imminent action. This extra nonspeech component may sometimes make such a threat constitutionally unprotected (much as solicitation of criminal conduct is unprotected, United States v. Williams, 553 U.S. 285 (2008)). But without such an attempt to get property or coerce behavior, a threat simply to speak (as in this case) is just speech.

Second, even bans on blackmail-like coercive threats — “if you don’t do X, I’ll inform people of Y” — are constitutional only when they exclude situations where X and Y are sufficiently connected (often called the “nexus” exception.) Saying, for instance, “if you don’t pay me back the $1000 you stole from me, I’ll call the police and tell them about the theft,” is

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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 [...]

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Indiana Advocacy, Political, or Journalist Groups?

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 [...]

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

That’s what Brewington v. State (Ind. Ct. App. Jan. 17, 2013) appears to hold. The defendant may well have seemed like a potentially dangerous person, and he was also convicted of perjury and other crimes; moreover, the government argued that he threatened violence and not just criticism. But the court’s reasoning, which focused on the defendant’s continuing harsh criticism, would apply to many other defendants in the future. This strikes me as quite troubling.

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

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