Criticize a Judge (or Anyone Else), Go to Jail?

Daniel BrewingtonDaniel BrewingtonDaniel 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. In an amicus brief filed the week before last, they 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.

Dearborn County Sheriff's DepartmentDearborn County Sheriff's DepartmentThe intimidation charge related to 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." Upholding Brewington's conviction on this count, the Indiana Court of Appeals 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 added that some of Brewington's statements about Humphrey were demonstrably false. "Over the course of at least a year," the court said, "Brewington repeatedly called Judge Humphrey a 'child abuser.'...Brewington also called Judge Humphrey 'corrupt'...and accused him of engaging in 'unethical/illegal behavior.'"

It is not clear to me that, as the appeals court claimed, Brewington's comments "went well beyond hyperbole and were capable of being proven true or false." As Brewington explained, he believed Humphrey's custody decision, which was coupled with restrictions on Brewington's visitation rights, was tantamount to child abuse. That claim and the accusations of "corrupt" or "unethical" behavior seem like expressions of opinion to me. In any case, the appeals court made it clear that for purposes of the intimidation charge it did not matter whether what Brewington said was true. It 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." As Volokh points out in the amicus brief, this reading of the law suggests that prosecution would be appropriate in situations like these:

1. a columnist’s writing, "Legislator A’s vote on issue B is ridiculous, and I intend to ridicule him until his constituents view him with contempt";

2. an advocacy group's picketing a store with signs saying, "The store owner's decision to stock product C is disgraceful, and we hope our speech will expose the owner to disgrace and ostracism";

3. a politician’s saying, "The incumbent’s decision D is so foolish that, once I publicize it, the incumbent will be the laughingstock of the state."

Under the appeals court's interpretation of the statute, all that's 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 concludes that the appeals court's decision "endangers the free speech rights of journalists, policy advocates, politicians, and ordinary citizens."

More on Brewington's case here.

[Thanks to Nicolas Martin for the tip.]

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  • Pro Libertate||

    You can punish speech all day, so long as you don't say you're punishing speech.

  • JW||

    He huwt the widdle judges feewings. What greater crime is there?

  • bmp1701||

    You just mocked every decent person who believes that emotionally hurtful speech should be banned. Hate Criminal!

  • Pro Libertate||

    Free speech for some; prison sentences for others.

  • ||

    Hmmm. Perhaps a special prison should be built to house every member of the commentariat here.... excluding the trolls.

    We are all off to the pokey.

  • Brett L||

    Whore Island?

  • Agammamon||

    Hm, sorry - I was picturing whore island.

    Also, Brett buddy - you need to be more situationally aware. I'd hate to see you get shot again.

  • Brett L||

    Have you noticed how often Bretts get shot in TV and movies? I mean, Pulp Fiction and Archer are actually the only ones I can name off the top of my head, but given the dearth of Bretts in general, its a high percentage.

  • Tulpa (LAOL-PA)||

    If Reason doesn't retract the claim that Mitt Romney was responsible for Obamacare, I'm going to continue telling the world about cosmotarian cocktail parties on the Orange Line.

  • fresno dan||

    first off, they need to call an orange line ....a lavendar line!

  • Matrix||

    I consider sending kids to public school as child abuse. It is lawful everywhere in the United States, and often required. Does that mean I should go to jail? Or maybe just send me to a reeducation camp.

  • NeonCat||

    A public reeducation camp?

    Maybe you can try to be home-reeducated, even though some say it will hurt your social redevelopment.

  • Skyhawk||

    And you're going to lose a lot of football games.

  • fresno dan||

    "expose the person threatened to hatred, contempt, disgrace, or ridicule."

    By that criteria, isn't every political ad illegal (at least in Indiana, which I propose be renamed to moronville?)

    And the court says "or" at the end, which means merely any ONE of those things could get you into the hoosegow

  • SugarFree||

    And they are all highly subjective states of being in the first place.

  • fresno dan||

    If just saying mean words gets you two years, what does farting in the general direction of someone get? Death???
    And by the courts' reasoning, they wouldn't even have to be stinkey farts.

  • gaoxiaen||

    Didn't Indiana jail people for taking videos of cops?

  • gaoxiaen||

    They're not too keen on that first amendment shit.

  • robc||

    Anyone who mocked Richard Mourdock in Indiana seems to be guilty of the same thing. That prison is going to be full.

  • fish||

    Nope! The "right" people and by right I mean left, can criticize all day long without fear of retaliation or opprobrium.

  • ||

    expose the person threatened to hatred, contempt, disgrace, or ridicule

    Note that not only do "we" not think this should be illegal, we actively think it's a good thing and, when based on nonfraudulent statements, generally to be desired in libertopia. N'est-ce pas?

  • Radioactive||

    so I guess "big fat poopy pants" is right out the window.

  • Marshall Gill||

    "expose the person threatened to hatred, contempt, disgrace, or ridicule."

    This fits nicely with sequestration. Won't all of the draconian cuts create this toward the government class? Favoring budget cuts of any kind is a felony!

  • gaoxiaen||

    By taking any public office they should expect exposure to "hatred, contempt, disgrace, or ridicule", but replace the "or" with "and".

  • Paul.||

    "Over the course of at least a year," the court said, "Brewington repeatedly called Judge Humphrey a 'child abuser.'...Brewington also called Judge Humphrey 'corrupt'...and accused him of engaging in 'unethical/illegal behavior.

    Wouldn't that just be grounds for a defamation lawsuit?

  • fish||

    Wouldn't that just be grounds for a defamation lawsuit?

    Why go through all the trouble of a civil trial with a guy who is probably broke from having his ass handed to him in divorce court when you can just have him imprisoned?

    So much neater this way.

  • SugarFree||

    And good for his children. They didn't need those child support payments anyway, right?

  • Paul.||

    Those are still piling up, payable upon exit from prison.

  • SugarFree||

    I'm sure he'll get a high paying job after getting out... or will he have to disclose to potential employers that he wasn't sufficiently deferent to his betters?

  • Brett L||

    I'd hire him.

  • tarran||

    You'd hire a guy who would harass and threaten you if you decided to point your business in a direction he didn't like? Or promote someone else into the slot he coveted?

    Ah yes, the impulsiveness of youth...

  • 4tehsnowflakes||

    Yeah, he showed that he cannot function in a professional environment. But the Indiana Ct of Appeals is still wrong, name-calling is name-calling. Very well reported by Mr. Sullum who even pulled a plum out of the briefing.

  • Loki||

    And good for his children.

    Plus they'll learn a powerful lesson about what happens when one critisizes one's "betters".

  • JW||

    KISS THE RING.

  • Paul.||

    3. a politician’s saying, "The incumbent’s decision D is so foolish that, once I publicize it, the incumbent will be the laughingstock of the state."

    That's prosecutable? Really? Schfuck me!

  • ||

    not under the 1st amendment it's not.

    my guess: case gets overturned on appeal, but the harm has still been major --- chilling effect, etc.

  • sarcasmic||

    Appeal was upheld.

  • ||

    it was an appeal, but it still CAN be appealed to that august body known as the Indiana Supreme Court (and eventually the scotus)

    that's who the amicus brief was filed with, fwiw, based on the article, which at least implies that there may be a SCOTSOI case pending

  • The Late P Brooks||

    The threat in this case was that Brewington would "expose the person threatened to hatred, contempt, disgrace, or ridicule."

    Ruh-roh!

  • Jerryskids||

    The judge should perhaps have googled the phrase 'Streisand Effect'. If he felt threatened by the risk of exposure to ridicule and contempt before, he's sure as hell not happy now.

  • The Late P Brooks||

    "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."

    Holy

    fucking

    shit.

  • carol||

    Sounds a bit like Canada's hate speech laws, doesn't it? If the truth is no defense then there is no defense period. Anyone can be prosecuted for merely hurting someone's precious feelings.

  • ||

    exactly. much like my state's unconstitutional cyberstalking law

  • ||

    fwiw, in the many years i've posted at volokh.com, i think i've disagreed with prof. volokh only once. he knows his first amendment law, and he's right here (of course)

    maybe he or orin kerr, can help out on this guy's appeal, because this is absurd.

    in my hundreds of contacts with judges, i've never seen one do something unethical, and i've never thought one has been grossly unfair, or abused their office, etc.

    they've made some decisions i've disagreed with, but on the whole i think judges do a VERY good job.

    BUT this shit is just absurd.

    nobody should have criminal protection from being criticized. i've seen a few whiffs of such things in a domestic violence case law, which imo is where a lot of this stuff got its start and where huge threats to the 1st amendment (and others) lie.

  • robc||

    He already lost first appeal.

  • ||

    i know. duh

    but there is already an amicus brief filed with the Indiana Supreme Court.

    i hope he wins there

  • Fatty Bolger||

    His mistake was threatening a judge. You think other judges are going to let him get away with that?

  • R C Dean||

    His mistake was threatening telling the truth about a judge.

  • gaoxiaen||

    You've obviously never dealt with an ex-cop local magistrate.

  • Loki||

    Great, so people can be sent to prison now for hurting other people's feelings. "Land of the free" indeed.

  • Fatty Bolger||

    Close. People can be sent to prison now for hurting the wrong people's feelings.

  • Loki||

    Great, so people can be sent to prison now for hurting other people's TOP. MEN's. feelings. "Land of the free" indeed.

    Fixed. Good point, Fatty.

  • Bear Talking in Passive Voice||

    The standard used for determining custody, and for most family law things for that matter, is what is in the best interest of the children.

    So, throwing dad in jail for five years is in the best interest of the children? The judge swore an oath to uphold the Constitution and the First Amendment -- the highest laws in the land. Does he get a free pass for breaking those laws? How about some basic human decency and not throwing a man in jail for FIVE FUCKING YEARS for speaking his mind?

    From what I've been able to read about this case so far this seems surreal. Unless there are facts I'm not aware of, Judge Humphrey, the prosecutors and the appellate judge ARE criminals for willfully violating the highest law of the land and using their position and hate for this man to hurt him far worse than he hurt them. These state actors are certainly following the Soviet and Nazi models of exacting retribution with extreme prejudice for simply being criticized. This is just sickening.

    Want to come put me in jail? I guess these guys would really hate my judge comment and rating here and here

  • JW||

    I hear that Judge James D. Humphrey...

  • ||

    That guy's clearly a COMMENT REDACTED

  • ||

    (dunphy firing up his laptop and starting a police report for the feds. cause we all know local cops are just lapdogs for the feds...)

    you were saying Warty?

  • Anonymous Coward||

    Judge James D. Humphrey...I have it on good authority that he likes to [redacted] in the [redacted] while wearing [redacted]. And that his wife likes to watch.

  • ||

    What, are all the rest of you sheepfucking dickweasels too chicken to pretend-libel this gigantic asshole of a judge?

  • WTF||

    Well, I've heard that he may or may not fuck sheep...

  • ||

    I'm pretty sure Humphrey isn't a Scottish surname.

  • fish||

    Sure it is....it;s just spelled differently there. I believe in Scotland it's "Hump Free".

  • Rights-Minimalist Autocrat||

    Dario Franchitti doesn't sound like a Scottish name, either.

  • 4tehsnowflakes||

    Some say, and it is merely their opinion, that Judge James D. Humphrey has a fetish for miniature Peruvian foot models coated in latex and salt.

  • ||

    Once you know the truth about him, what damage could still be done to his reputation?

  • BabbleFish||

    Speech laws aside, Brewington's lawyer should have advised him against bitching online in order to avoid this trap. See, now that he'll have been away from his girls for 2+ years, once this is all over his ex will argue in court that they're not used to him being around and therefore he still shouldn't have custody or unsupervised visits. The judge will agree, because that's a very well established argument when deciding custody for young children.

    Welcome to family law.

  • tarran||

    Didn't we talk about this case some months ago?

    I can't seem to find my comments, so I will paraphrase.

    Daniel Brewington is an idiot who deserves to lose custody of his children and talked his way into jail.

    The problem here is that he didn't understand what was happening and behaved like an unstable, emotionally uncontrolled ass. Worse, he neglected the kids in order to harry the judge.

    The court system is very willing to review custody arrangements, particularly ones where one parent gets supervised visitation.

    The secret to getting out of that purgatory is to behave stably, so that the judge says "hey, I see you're a standup guy, you deserve to see your kids." You stay calm, do nice things with your kids in front of the supervisor, and eventually the supervisors will happily testify as to how good you are with the kids.

    The way to lose your kids is to behave unstably. And he set about doing just that. He posted nasty things online. He left the kids with his mom while he worked on his website and went out to wage his campaign away from the house.

    And he didn't just post nasty things online. He tried to insert himself into the judge's life. IIRC, he went out of his way to join her health club. IIRC there was also some mess where he harassed the judge's husband at his place of work. Basically, he wanted to harass them, thinking they would give him what he wanted to make him go away.

  • tarran||

    (cont)

    It was the nasty things we wrote PLUS his attempts to involve himself in the life of the judge and her husband that constituted harassment.

    Good luck getting this conviction over-turned. I think no appeals court is going to over-turn the finders' of fact conclusion that the pattern of interactions initiated by Daniel with the judge met the criteria for harassment.

  • JW||

    The judge in this case is a he and not a she (although it's rumored that he...), so it might be a different case you're thinking of.

  • tarran||

    I researched it. This *is* the case I was thinking of. He tried to harass the judge's wife by encouraging people to send her letters at her home.

    Here is the damning Apellate Court finding:

    The jury could have reasonably found from this evidence that after Dr. Connor issued what Brewington perceived to be an unfavorable custody evaluation, Brewington
    undertook a campaign of harassment and non-violent intimidation to coerce Dr. Connor into altering or withdrawing the evaluation and withdrawing from the case as a witness.
    In both frequency and tone, Brewington’s letters went far beyond what was reasonably necessary to litigate his divorce case or to express displeasure with the evaluation.
    Threats to sue Dr. Connor, to report him to numerous professional societies and associations, including disciplinary authorities, to report him for alleged criminal behavior, and to subject him to lengthy, harassing depositions could constitute undue coercion. Thus, there is sufficient evidence of non-violent threats or undue coercion to satisfy that element of the offense of attempted obstruction of justice, and we find no
    grounds for reversal

    I did misremember numerous details. However, everyone should read the appellate court findings. The term non-violent intimidation is pretty apropos.

  • Tonio||

    Tarran is right. Yes, this guy is right on principle but dead wrong on practicality. Harassing a judge isn't going to win you any favors with that judge. And all the other judges are going to close ranks because they don't want to be harassed.

    Having said that, there's a difference between posting a few snitty things on FB, and semi-stalking behavior.

  • Whahappan?||

    No, Tarran is wrong. What this guy did is maybe creepy, but in no way illegal (the Constitution trumps all other laws.) This case is a perfect example of the evil and corruption which permeates our government in general and law enforcement in particular. Everyone involved on the government side, from the judge, to the prosecutor, to the appeals court judges to the legislators who passed this law are vile scum who believe what they did to this man is unjust. They are knowingly, intentionally, deliberately, self-awarely evil.

  • sbrewington||

    Dan Brewington had a perfect 2 1/2 year record of caring for his girls during his divorce. There were no complaints during that time by anyone. During a 3 day divorce trial there was absolutely no mention of taking the girls away from Brewington because he might be a danger to the girls. Judge Humphrey left the girls with Brewington for another 2 1/2 months before issuing his ruling that Dan "might" be dangerous. Dan last saw his girls Aug. 18, 2009. The girls had not been away from either parent more than 4 days since they were born. The judge took away Dan's visitation which at the very least would assure that he would not see the girls for several months. Why shouldn't a man with a perfect record for parenting not "fight" back? He was not presented with a list of court approved therapists, so in theory, he could spend months just having hearings set up and then have his pick of a therapist denied. Oh, that is exactly what happened.
    I don't know where you get your "facts" but there was never any mention of a health club, Judge Humphrey is a he. His wife got 3 professionally written letters from family friends because she was listed as being on the Supreme Court Ethics and Professional Committee.The appellate court vacated that charge. Judge Humphrey used 2 little girls to punish their father. I'll let others decide if they think this could be child abuse.

  • Swamp Think||

    Since Ann Coulter isn't here, I'm gonna go ahead and say it.

    Judge James D. Humphrey is a PUSSY!

  • Duke||

    The threat in this case was that Brewington would "expose the person threatened to hatred, [or] contempt, [or] disgrace, or ridicule.

    This law is not broad enough or vague enough for my progressive sensibilities.

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