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Thursday, May 01, 2014

Ind. Decisions - More on: Supreme Court decides Brewington case, distinguishes between protected speech and unprotected true threats [Updated]

Updating this ILB post from this morning, Eugene Volokh has posted a summary of the opinion as it relates to the intimidation charge, which he briefed and argued on behalf of amici. Volokh concludes:

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.
[Updated at 1:30 PM] Here is Tim Evans' initial IndyStar story about today's ruling. Some quotes:
Daniel Brewington, 39, Cincinnati, was convicted in 2011 of intimidation of a judge, attempted obstruction of justice and perjury for comments he wrote on a blog about the Dearborn County judge who presided over his contentious divorce case.

Brewington thought — and argued in court — that he was exercising his First Amendment right to criticize a public official, but authorities decided his statements crossed the line from free speech into criminal behavior.

“It is every American’s constitutional right to criticize, even ridicule, judges and other participants in the judicial system — and those targets must bear that burden as the price of free public discourse,” the court’s ruling says. “But that right does not permit threats against the safety and security of any American, even public officials, regardless of whether those threats are accompanied by some protected criticism.”

The Indiana Court of Appeals in January 2013 upheld the most serious of his convictions.

Brewington appealed that decision to the Supreme Court. He found support for his attempt to have the convictions overturned in an unlikely coalition: a mix of conservatives, liberals, academics and media advocates, including The Indianapolis Star.

The groups that signed on to a friend of the court brief weren't interested in the minutiae of Brewington's divorce and custody fight. Their concern extended to a broader issue: a belief that Indiana's intimidation law — particularly as interpreted by the Court of Appeals in Brewington's case — violates the First Amendment of the U.S. Constitution.

"The Star's decision to support the request for a Supreme Court review is not an endorsement of Brewington or his actions," Star Editor Jeff Taylor said last year when the newspaper joined the group seeking a Supreme Court review.

"Our focus is on the significant First Amendment issue raised here," Taylor said. "We're concerned that the intimidation law, as used in this case, infringes upon protected speech and could be used as a weapon to go after anyone — whether that's a journalist, a private citizen, an activist, whatever the case — who doggedly criticizes the actions of public officials or public figures."

In the appellate case, the attorney general's office successfully argued that Brewington's free speech rights were not violated, contending his comments were "unprotected" and "fighting words" that constituted criminal conduct.

Posted by Marcia Oddi on May 1, 2014 01:20 PM
Posted to Ind. Sup.Ct. Decisions