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 constitutionally protected; the threatened revelation (telling police about the theft) is connected to the speaker’s demand (give me back the stolen money). See, e.g., State v. Weinstein, 898 P.2d 513, 515 (Ariz. Ct. App. 1995). On the other hand, saying “if you don’t pay me $1000, I’ll tell the police about your using drugs” is punishable blackmail; there is no nexus between the threatened revelation and the speaker’s demand.

Indeed, Arizona, Colorado, Oregon, and Washington courts have struck down statutes that are very similar to I.C. §§ 35-45-2-1(a)(1), (c)(6) because the statutes’ lack of a “nexus” exception made them unconstitutionally overbroad. Weinstein, 898 P.2d at 515; Whimbush v. People, 869 P.2d 1245, 1248 (Colo. 1994); State v. Robertson, 649 P.2d 569, 586-88 (Or. 1982); City of Seattle v. Ivan, 856 P.2d 1116, 1120-21 (Wash. Ct. App. 1993). [Footnote: Robertson held the law violated the Oregon Constitution, but it relied on First Amendment precedents, such as Keefe, see 649 P.2d at 585, and has since been cited by First Amendment cases in other states, see Whimbush, 869 P.2d at 1248, 1250; City of Seattle, 856 P.2d at 1119 n.4; State v. Steiger, 781 P.2d 616, 621, 622 n.2 (Ariz. Ct. App. 1989).] And New Hampshire and Washington courts have interpreted such statutes to embody a “nexus” exception so that the statutes would not be unconstitutionally overbroad. State v. Hynes, 978 A.2d 264, 278 (N.H. 2009); State v. Pauling, 69 P.3d 331, 335 (Wash. 2003).

These decisions are correct, because a wide range of speech potentially covered by statutes such as I.C. §§ 35-45-2-1(a)(1), (c)(6) — in the absence of a “nexus” exception — is constitutionally protected:

1. Threatening to keep publicizing and condemning a real estate agent’s practices in order to pressure him into changing those practices is constitutionally protected. Organization for a Better Austin, 402 U.S. at 419.
2. Threatening to keep publicizing and condemning shoppers’ decisions not to comply with a boycott in order to pressure the shoppers into changing their behavior is constitutionally protected. NAACP v. Claiborne Hardware, 458 U.S. at 909-10; see also Eagle Books, Inc. v. Jones, 474 N.E.2d 444, 450 (Ill. Ct. App. 1985) (threats to publicize the identities of pornography buyers were constitutionally protected).
3. A consumer’s “threaten[ing] a vendor that unless he is given a refund for a defective product he will complain to the Better Business Bureau” is constitutionally protected. Pauling, 69 P.3d at 335; Weinstein, 898 P.2d at 515. The same is true when the consumer publicizes his dissatisfaction with plaintiff’s product and implicitly threatens further such publicity unless he gets a refund. E.g., DeGroen v. Mark Toyota-Volvo, Inc., 811 P.2d 443, 446 (Colo. Ct. App. 1991); J.Q. Office Equipment of Omaha, Inc. v. Sullivan, 432 N.W.2d 211, 214 (Neb. 1988).
4. “[A] store owner[’s telling] a customer to pay a delinquent bill or else he will report the customer to a credit reporting agency” is constitutionally protected. Weinstein, 898 P.2d at 515.
5. So is “a mother[’s informing] her former husband that if he does not pay back child support, she will report him to the court where he risks incarceration.” Id.
6. So is saying, “[i]f you do not withdraw this research report …, I will disclose that you falsified the experiment.” Robertson, 649 P.2d at 580 n.13.
7. So is a newspaper reporter’s “tell[ing] a public official [that] if the public official votes a certain way, the reporter will divulge that the public official will gain from the public body’s action.” State v. Steiger, 781 P.2d 616, 621 (Ariz. Ct. App. 1989); City of Seattle, 856 P.2d at 1120 (noting that a provision much like §§ 35-45-2-1(a)(1), (c)(6) could unconstitutionally “impinge on freedom of the press”).
8. So is a citizen’s “protest[ing] a perceived unlawful arrest by threatening to write a letter to the editor of the local newspaper.” Chaffee v. Roger, 311 F. Supp. 2d 962, 967 (D. Nev. 2004).
9. So is a citizen’s threatening to continue picketing a store until it stops selling a particular product, such as pornography. Eagle Books, 474 N.E.2d at 450.

Likewise, United States v. Jackson, 180 F.3d 55, 67 (2d Cir. 1999), rev’d only as to the harmless error analysis, 196 F. 3d 383 (2d Cir. 1999), stressed that a “nexus” exception to extortion statutes is necessary:

[N]ot all threats to engage in speech that will have the effect of damaging another person’s reputation, even if a forbearance from speaking is conditioned on the payment of money, are wrongful. For example, the purchaser of an allegedly defective product may threaten to complain to a consumer protection agency or to bring suit in a public forum if the manufacturer does not make good on its warranty. Or she may threaten to enlist the aid of a television “on-the-side-of-the-consumer” program. Or a private club may threaten to post a list of the club members who have not yet paid their dues.

See also United States v. Coss, 677 F.3d 278, 286-87 (6th Cir. 2012) (endorsing the Jackson analysis). In Jackson, the court was interpreting the federal extortion statute, but later courts have relied on Jackson in their constitutional analyses and held that a “nexus”-like exception that they read into their statutes makes the statutes constitutional. See, e.g., Pauling, 69 P.3d at 336-37; Hynes, 978 A.2d at 278; see also Kent Greenawalt, Criminal Coercion and Freedom of Speech, 78 Nw. U. L. Rev. 1081, 1121 (1984) (suggesting a similar analysis, in the leading scholarly article on the question). And, for much the same reason, most state blackmail, coercion, and extortion statutes that are similar in structure to I.C. §§ 35-45-2-1(a)(1), (c)(6) specifically exclude threats of speech where the threatened revelation has a sufficient nexus to the behavior that the threatener wants to prevent. See, e.g., Model Penal Code § 212.5 (1985); Iowa Code Ann. § 711.4 (2012); Ky. Rev. Stat. Ann. § 514.080(2) (2012).

This “nexus” exception can easily be adapted to I.C. §§ 35-45-2-1(a)(1), (c)(6): If the speaker is trying to get the target to stop certain behavior, by threatening to publicize and condemn that behavior, the nexus is present and the threat is constitutionally protected.

Strictly speaking, this Court does not need to read such a “nexus” exception into subsection (a)(1), because Brewington was prosecuted under subsection (a)(2) (the retaliatory threat provision), not under (a)(1) (the coercive threat provision). Nonetheless, the Court of Appeals did note the blackmail analogy in arguing (a)(2) was constitutional, so this Court should address it as well.

In rejecting that analogy, this Court can explain that even coercive threats of public condemnation are constitutionally protected (and excluded from the statute) so long as there is a “nexus” between the threatened disclosure and the demand — and, in particular, whenever the threat is simply to condemn or ridicule the very act that the speaker is trying to prevent. Amici urge this Court to so hold, in order to prevent the chilling effect on Indiana citizens’ speech stemming from the apparent breadth of subsections (a)(1) and (c)(6), and from prosecutors’ willingness (displayed in this case) to read the statute broadly as covering criticism of public servants’ official acts.