More on the Indiana Brewington outcome

I am still trying to make sense out of the Indiana Brewington decision. According to the Indiana supreme court, here is the core of the case against him:

But for all the strength of that circumstantial evidence, the strongest evidence here is direct: that Defendant declared—indeed, emphasized—his threatening intent in a letter to the children’s treating therapist that he attached to his reply in support of the “Motion for Relief from Judgment”:

I have always said that I would hold everyone accountable for any unethical and/or illegal conduct in matters dealing with my children. Some would argue that this appears threatening. I would argue that it is a promise. People have accused me of trying to intimidate psychologists, lawyers, and judges. ... If I have done anything wrong, I would suggest that these people contact the proper authorities and file charges or retain an attorney and sue me.

This touches on a confusing and technical legal issue, called the blackmail paradox:

1. I am generally perfectly free to publish embarrassing information about you — in fact, I generally have the constitutional right to do so. (The “disclosure of private facts” tort may constrain this in some instances, but the tort has been read quite narrowly, and much revelation of embarrassing secrets is not tortious and constitutionally protected.) Likewise, I am free to keep quiet about such information.

2. I am generally perfectly free to ask you for money — or to ask you to do something else — in exchange for my doing something (here, keeping quiet) that I have no preexisting legal obligation to do. This distinguishes classic extortion, where I ask you for $10,000 not to burn down your store: Because I have a legal obligation not to burn down your store, it’s easy to explain why extortionate threats to burn down the store would be punishable. I will use “blackmail” to mean just threats to reveal information, not threats to commit illegal violence or property destruction.

3. But if I ask you for money or a service in exchange for my not revealing embarrassing information about you, then that’s a crime.

What’s the explanation? Legal scholars have debated this for decades, and to my knowledge have not come up with a perfectly satisfactory answer.

The most obvious explanation of Brewington's language is that he was trying to avoid blackmail. That is, he is promising to hold the shrink accountable for his bad conduct, but he does not want to blackmail him by asking for a good evaluation in return for not reporting the bad conduct.

E. Volokh explains how the Indiana court got the blackmail analogy wrong.

Bribery law has a similar paradox. Calif. Gov. Jerry Brown is running for re-election. You are free to contribute money to his campaign. You are free to ask him to veto a particular bill. But it is a crime to offer to give the money contingent to vetoing a particular bill.

In context, it seems clear that Brewington just wanted to see his kids, and to expose any corrupt/unethical/improper practices that present legal impediments. His position is not that much different from other litigants who aggressively argue their cases.

You can read the court decision for details of other accusations against Brewington. Or save the trouble, because the decision said that the above is the "strongest evidence" against me.

The other accusations are just as ridiculous. One says that he found Heidi Humphrey's address on a public database, but lied when he said that he was not sure if she was married to Judge James Humphrey. Even if he discovered that they lived at the same address, I don't see how he could have know whether she was a wife, sister, daughter, mother, or what.

Another silly argument is that Brewington said he felt threatened by a police officer who called him and knew that his mom lived in Cincinnati, and hence should have known that someone could feel threatened by disclosing a home location. The decision presents this as some sort of smoking gun, but it proves nothing. The critical issue is what is being threatened. I really don't think that Brewington felt that the cop was threatening to kill or do bodily injury to his mom. More likely, he felt threatened that the authorities were going to use some sort of legal process to intimidate him.

As Volokh's brief and oral argument forced the Indiana supreme court to concede, the First Amendment protects speech that threatens to expose judges to “hatred, contempt, disgrace, or ridicule”. So even if Brewington were threatening the judge, such threats are entirely legal if directly at exposing the judge's bad behavior in taking his kids away, as is clearly the case.

Here is where the decision concedes that the whole prosecution was based on an unconstitutional law, because the indictment was vague and the defense argued free speech, Brewington invited the error:

Like Bachellar, the grand jury’s indictments against Defendant here do not allege any particular act or statement as constituting intimidation, instead alleging generally that his conduct as a whole “between August 1, 2007 and February 27, 2011” (as to the Doctor) and “between August 1, 2009 and February 27, 2011” (as to the Judge) was “intended to place[ them] in fear of retaliation for a prior lawful act.” App. 22, 24. Nothing on the face of the indictments, then, creates confusion between protected or unprotected acts as the basis for conviction. Instead, like Bachellar, any confusion arises only because of how the case was argued and how the jury was instructed.

Specifically, the prosecutor argued two grounds for Defendant’s convictions, one entirely permissible (true threat) and one plainly impermissible (“criminal defamation” without actual malice). See Tr. 455–56. Then, the jury was instructed on all eight alternative forms of “threat” under Indiana Code section 35-45-2-1(c), App. 16, without any instruction that for these particular victims, threats of “criminal defamation” under (c)(6) and (7) also require “actual malice.” That makes it quite possible that the impermissible criminal-defamation theory formed at least part of the basis for the jury’s guilty verdicts, and the general verdict cannot indicate otherwise. Accordingly, Bachellar compels us to find a general-verdict error here—but as discussed below, Defendant invited that error as part of a reasonable defense strategy, and therefore may not raise it as grounds for relief.

This is amazingly bad reasoning.

There is very little mention of the real issue, which is that a rogue psychologist (Edward Connor and judge (James Humphrey) had had conspired to take his kids away for bogus reasons. The decision is mean where it says:

Defendant considered that ruling tantamount to termination of his parental rights. [cite] But instead of taking the court-ordered steps to maintain his relationship with his children, he escalated his efforts at intimidating the Judge and the Doctor — efforts he was able to pursue full-time, since he was unemployed at all times during and after the divorce, supported by his mother’s provision of a rentfree house and $2,500 monthly assistance.

Yes, he used legal channels to object to losing custody of his kids and vindictive court official putting him on supervised visitation. The Indiana supreme court is showing an extreme anti-father bias.

Someone suggested an appeal to the US Supreme Court, but that will not happen. This is the final word on the issue. Brewington only got to the Indiana supreme court because Volokh and the ACLU got involved in a blatantly unconstitutional appellate ruling. The US Supreme Court never bothers with cases like this.