Brewington lost his appeal

Fellow angry dad Dan Brewington was imprisoned for his blog where he complained about his family court judge and court custody evaluator/psychologist. The Indiana appeals court has just upheld his conviction.

I have mentioned Brewington's case many times, and he has occasionally commented on this blog.

UCLA law professor Eugene Volokh is a leading expert on free speech law, and he denounces this decision:

I think this too is a mistake on the court’s part, because the statements — or at least the great bulk of them — were likely to be seen by readers as opinions (however biased and unsound) about what the judge’s actions were morally tantamount to, and not factual allegations. But in any event, the court had made clear by this point that its analysis did not turn on this, and that Brewington’s statements could be punished regardless of whether they were true, so long as they were a continuing threat of exposing the judge to “hatred, contempt, disgrace, or ridicule” based on his past actions. ...

As I’ve said above, I think this decision is wrong, and quite dangerous. ... A very bad result, which I hope the Indiana Supreme Court reviews and reverses.

Brewington was convicted of threatening the judge, and that sounds bad, but the court defined that to include exposing him to "hatred, contempt, disgrace, or ridicule." The blog did that by detailing how the court was separating kids from dads, and making an analogy to child abuse. The appeals court ruled:

Brewington argues he was merely stating his opinion that, in constraining his right to see his children, Judge Humphrey was essentially committing child abuse. ... 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. Thus, even if the State was required to prove that Brewington knew his public statements about Judge Humphrey were false, there was ample evidence from which the jury could have concluded that Brewington accused Judge Humphrey of child abuse and professional misconduct while knowing that the accusations were false.

This is wrong on many levels. The judge's bad ruling did cause harm to kids. He ought to held out for contempt and ridicule. A citizen has a right to express his opinion of a public official, good or bad. This ruling is like a court saying:

Your blog called Pres. Obama's latest executive order an abuse of power, and thereby subjected him to ridicule. You can be thrown in prison for that. Only by willfully misinterpreting the order in bad faith could one argue that his conduct constituted an intentional act to exceed his authority. Even if the court has to prove you wrong there is ample evidence from which the jury could have concluded that your blog accused the President of abuse of power while knowing that the accusations were false.

We are not a free nation if we cannot criticize the public officials who are oppressing us.

Under the same reasoning, Prof. Volokh or I could be imprisoned for disagreeing with this appeals decision.

A lawyer comments on a recent appeal:

And quite correctly, I’ll hasten to add; there can be no justification in American law for curbing speech in an effort to protect the reputation of a company.

This case is much worse. It is curbing speech (and imprisoning the speaker) to protect the reputation of a judge and a psychologist.

I just ran across this last line from a famous poem:

To strive, to seek, to find, and not to yield.

I hope that Brewington's kids understand someday that he made a principled stand for them, exposed corrupt public officials, and went to prison for it.

Brewington's blog has the local news story that he did win on a couple of his arguments:

“The jury instructions directed the jury to consider the same evidentiary facts to support both convictions). Consequently, both convictions cannot stand. When two convictions contravene double jeopardy principles, ‘we vacate the conviction with less severe penal consequences,’” Darden wrote.

The court also agreed with Brewington that his urging blog readers to send letters about his case to Heidi Humphrey, who serves as an Indiana Supreme Court Ethics and Professionalism Advisor, did not cross the line to intimidation.

“He did not describe her in a negative light or encourage anyone to do anything other than write letters to her, as a purported public official, about his divorce case,” believed Darden. “Although we do not condone Brewington’s unjustifiable and bad faith attempt to drag Mrs. Humphrey into his divorce litigation, his actions in relation to Mrs. Humphrey do not meet the definition of a threat for purposes of the intimidation statute.”

Despite two of the five convictions being thrown out, Prosecutor Negangard says he’s still pleased with the appeals court decision that doesn’t alter the bottom line: Brewington’s time in prison.

I hope the Indiana supreme court hears his case.

Hans Bader adds:

As a former federal judicial clerk, and practicing lawyer for many years, I find this decision outrageous. Are judges the new nobility?

Judges are already given special privileges, such as absolute civil immunity for clearly unconstitutional conduct. This court ruling effectively gives them a far more extreme special privilege -- immunity from sharp criticism when they engage in serious wrongdoing, which is unfortunately a recurring problem in certain state courts (especially in family law cases).

The fact that one ordinary means of redress has been eliminated for judges (civil liability) makes it all the more important that other avenues of redress, such as public protest, remain open.

Like many lawyers, I have publicly condemned judges for wrongdoing and constitutional violations (in my case, in both newspapers and blogs, repeating such condemnations persistently, until the underlying ruling was reversed). See here, for example, of my repeated, personal criticism by name of a state judge for an unconstitutional ruling that was subsequently reversed: ...

Update: Susan says that the decision is contrary to Indiana precedent:

The decision is clearly unlawful.

A threat requires that the defendant express an intention to unlawfully injure the person threatened. IND.CODE section 35-45-2-1(c)(1).
See Gaddis v. State, 680 N.E.2d 860 (Ind.App. 1997).

Gaddis also seemed to acknowledge the overly broad provisions of the intimidation statute. That court spoke of the need to resolve any ambiguity against imposition of the statute and specifically noted that, “Statutes enacted by our legislature are presumed to be constitutional and, where possible, must be so construed.”

The Brewington court ignored the Gaddis holding that an intimidation defendant has to threaten to commit an unlawful act. The court “focused its analysis on “whether Brewington threatened Judge Humphrey by expressing an intent to expose him “to hatred, contempt, disgrace, or ridicule.” Ind. Code § 35-45-2-1(c)(6).” Nevermind that that are many lawful acts that result in exposing someone to such problems.

The Brewington court also failed to consider the constitutionality of this particular application of the statute.

This decision is a sickening example of how free our courts feel to ignore the law when it suits them. I hope the decision is widely circulated as it is a perfect example of a court blatantly perverting the law. I appreciate that it was exposed here.

Makes sense to me,