INDIANAPOLIS – An Indiana man imprisoned for online rants against the judge who handled his divorce is at the center of a legal debate over whether his blog went beyond the limits of protected free speech.
Supporters – ranging from the American Civil Liberties Union to the conservative lawyer behind the U.S. Supreme Court’s landmark 2010 campaign finance law ruling – have filed briefs asking Indiana’s top court to review a lower court ruling that upheld Dan Brewington’s 2011 conviction for intimidation.
Although Brewington’s blog included references to arson and beatings, Brewington said he didn’t mean for them to be taken literally, and his supporters say the real issue is a state law that could potentially make harsh criticism a crime.
Brewington’s attorney, Michael Sutherlin, who filed paperwork last month asking the state Supreme Court to review the case, said Friday that Brewington’s conviction was based on an Indiana statute that makes it against the law just to threaten to expose a person to public contempt or disgrace.
UCLA law professor Eugene Volokh, who runs a legal blog, said if Brewington’s conviction is allowed to stand, it could endanger citizens’ rights to criticize public officials, businesses and others.
“If somebody threatens expressly or implicitly to criticize someone, then under this precedent, regardless of whether there’s even any whiff of potential for violence, there would be no First Amendment defense and this person could be prosecuted,” he said.
Volokh filed friend of the court briefs along with the conservative Eagle Forum, constitutional scholars, the ACLU and the James Madison Center for Free Speech, represented by Republican lawyer James Bopp.
“They’d never have a beer together, probably,” Sutherlin said of the disparate groups.
The dispute started when the judge in Brewington’s divorce case ordered him to undergo a mental evaluation before considering giving him visitation rights to his children. A psychologist said he believed Brewington was potentially violent.
Brewington reacted by writing scathing attacks about the judge and psychologist in letters and online. Court documents said Brewington posted on Facebook “this is like playing with gas and fire, and anyone who has seen me with gas and fire knows that I am quite the accomplished pyromaniac.”
Prosecutors also said Brewington threatened to beat up the psychologist who evaluated him, posted the judge’s home address online and made remarks about the judge’s wife.
“I think it’s important to understand that this isn’t just someone who’s criticizing a judge,” said Dearborn-Ohio County Prosecutor Aaron Negangard, who handled the criminal case. “Anyone who questioned him got harassed. Free speech does not give you the right to harass witnesses in the justice system.”
Brewington’s supporters say his comments were misread or taken out of context. But Negangard said Brewington used careful language to disguise actual threats.
Negangard said he recognized that much of what Brewington said was constitutionally protected, but “he crossed the line.” But Brewington’s supporters say whether he was dangerous isn’t the issue.
“He’s convicted for what he said, not because of what’s in the divorce papers,” Bopp said. “It goes beyond what was clearly over the top rhetoric as far as I’m concerned, but the First Amendment protects over-the-top criticism,” he added.