Daniel Brewington, was unhappy with the way that Judge James D. Humphrey of Dearborn County, Indiana, handled his divorce case, in which Brewington lost custody of his children, after which Brewington explained why at length in various strongly worded online commentaries. Largely as a result of those posts made by Brewington, he is now serving a two-year sentence at the Putnamville Correctional Facility for intimidation, perjury, and attempted obstruction of justice. The sentence Brewington received for condemning Humphrey’s actions has attracted criticism from a wide range of First Amendment advocates. In an amicus brief filed the week before last, they have urge the Indiana Supreme Court to overturn Brewington’s conviction for intimidating Humphrey, arguing that the provision under which he was convicted, as interpreted by a state appeals court, threatens constitutionally protected speech about the official acts of public officials.

The intimidation charge was related to Brewington’s comments about Judge Humphrey, it was treated as a felony because it involved a judicial officer, and was based on the allegation that he “communicated to another person a threat with the intent that the other person be placed in fear of retaliation for a prior lawful act.” The threat in this case was that Brewington would “expose the person threatened to hatred, contempt, disgrace, or ridicule.” The Indiana Court of Appeals Upholding Brewington’s conviction on this count, ruled last month that “the truthfulness of the threatened disclosure is not necessarily relevant to prosecution because the harm, placing a victim in fear, occurs whether the publicized conduct is true or false.” It also added that some of Brewington’s statements about Judge Humphrey were demonstrably false. “Over the course of at least a year,” the court said, “Brewington repeatedly called the Judge a ‘child abuser.’ Brewington also called the Judge ‘corrupt’ and he accused him of engaging in ‘unethical and illegal behavior.

Brewington explained that he believed Humphrey’s custody decision, which along with restrictions on Brewington’s visitation rights, was child abuse. The appeals court rejected Brewington’s argument that his speech was protected by the First Amendment, saying “the conduct that is criminalized here, communicating a threat to a victim to place the victim in fear of retaliation for a prior lawful act, necessarily falls outside the realm of protected criticism of government decisions due to the requirement of criminal intent”—i.e., an intent to “place the victim in fear.”

Under the appeals court’s interpretation of this statute, all that is necessary for a conviction is an explicit or implied threat of speech aimed at portraying the “victim” in a negative light. It is not hard to see why Volokh concluded that the appeals court’s decision “endangers the free speech rights of journalists, policy advocates, politicians, and ordinary citizens.”

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