Published March 03, 2013
A group of free-speech advocates is rallying behind an Indiana inmate serving two years for his online rants against a judge who took away his child-custody rights during a divorce case.
There’s no disputing that Daniel Brewington’s words were strong and angry -- found in hundreds of emails over the course of the related, two-year divorce case.
But the group is asking the state’s highest court to decide whether they indeed amounted to criminal behavior.
Brewington was convicted in 2011 of perjury, intimidating a judge and attempting to obstruct justice -- with the attorney general’s office successfully arguing that his threat was to expose the judge to “hatred, contempt, disgrace or ridicule."
However, the group recently filed an amicus brief with the state Supreme Court arguing an appeals court decision in January upholding the felony intimidation charge threatens constitutionally protected speech about public officials.
The court will decide after the March 11 filing deadline on whether to take up the case.
The appeals court argued that some of Brewington’s claims against Judge James D. Humphrey were false. It also argued their truthfulness were not necessarily relevant to prosecution because the harm, which in this case was striking fear in the victim, occurred “whether the publicized conduct is true or false,” according to Reason magazine.
The group is led by University of California Los Angeles law professor Eugene Volokh and includes conservative lawyer James Bopp, a former executive director of the Indiana Civil Liberties Union, the Indiana Association of Scholars, The Indianapolis Star and the James Madison Center for Free Speech.
Volokh wrote in the brief that the appeals court decision “endangers the free speech rights of journalists, policy advocates, politicians and ordinary citizens.”
In his rants, Brewington called the judge a “child abuser” and “corrupt” and accused him of unethical or illegal behavior.
He argued that Humphrey taking away his children amounted to child abuse.
Humphrey said he could not comment on the case. But court records purportedly show he felt threatened enough to get a gun out of storage, install a home-security system and get protection from a police detail.
The Star said the group is not interested in the “minutia” of the 2007 divorce case and custody fight. It is instead focused on 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.”
Brewington's attorney Michael K. Sutherlin said his client may not have had “the rhetorical skill of Thomas Paine but like 18th-century pamphleteers, he used a popular forum of expression in his time (here, the Internet) to complain about unfair treatment by an oppressive system.”