Critics As Criminals

Intimidating intimidation law

Daniel Brewington was not happy with the way that Dearborn County, Indiana, Judge James D. Humphrey handled his divorce case, during which he lost custody of his children, and he explained why at length in various strongly worded online commentaries. Largely as a result of those posts, Brewington is serving a two-year sentence at the Putnamville Correctional Facility for intimidation, attempted obstruction of justice, and perjury.

The punishment Brewington received for condemning Humphrey's actions has attracted criticism from a wide range of First Amendment advocates, including UCLA law professor Eugene Volokh, 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. An amicus brief they filed in February urges 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.

The intimidation charge stemming from Brewington's comments about Humphrey, which was treated as a felony because it involved a judicial officer, 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."

As Volokh points out in the amicus brief, this reading of the law could apply to a columnist who announces his intent to ridicule a legislator over a vote, activists who picket a store with the aim of disgracing and ostracizing the owner because of his decision to sell a controversial product, or a politician who runs against an incumbent and promises to make him a laughingstock by exposing the deficiencies of his record. Volokh concludes that turning such criticism into a crime "endangers the free speech rights of journalists, policy advocates, politicians, and ordinary citizens."