First Amendment protects speech that threatens to expose judges to “hatred, contempt, disgrace, or ridicule”

So the Indiana Supreme Court held this morning in State v. Brewington (Ind. May 1, 2014), a case that I briefed and argued on behalf of amici last year. (The amici were Eagle Forum, the Hoosier State Press Association Foundation, the Indianapolis Star, the Indiana Association Of Scholars, the Indiana Coalition for Open Government, the James Madison Center for Free Speech, Nuvo [Indy’s Alternative Voice], and Professors James W. Brown, Anthony Fargo, and Sheila S. Kennedy, who are Indiana professors of journalism or public policy.)h

Here’s a quick summary of the intimidation charge on which our brief focused.

Daniel Brewington was involved in a contentious child custody dispute; Judge James D. Humphrey ruled against him in this dispute, giving sole custody to Brewington’s wife, limiting Brewington’s visitation, and finding Brewington “to be irrational, dangerous and in need of significant counseling.”

After this decision, Brewington posted various items online “discussing Judge Humphrey, in which he described the judge as ‘corrupt,’ and accused him of engaging in ‘unethical/illegal behavior.’ He also repeatedly referred to the judge as a child abuser.” Brewington was then prosecuted for, among other things, violating Indiana Code § 35-45-2-1, which (in relevant part) criminalizes as “intimidation”

communicat[ing] a threat to another person, with the intent … that the other person be placed in fear of retaliation for a prior lawful act,

and defines “threat” to include threats of

expos[ing] the person threatened to hatred, contempt, disgrace, or ridicule.

Brewington was convicted, and the court of appeals affirmed, concluding that the speech was criminally punishable, even without any need for the state to prove that Brewington’s criticisms of the judge were false:

At trial, the State alleged that Brewington communicated a threat to Judge Humphrey, with the intent of placing him in fear of retaliation for issuing the divorce decree in this case…. [T]he State argued that Brewington issued several different types of threats …. We focus our analysis on whether Brewington threatened Judge Humphrey by expressing an intent to expose him “to hatred, contempt, disgrace, or ridicule.” [According to the State’s appellate brief, this threat consisted of his posts calling Humphrey a “child abuser” after the decision, and not of any statement such as, “if you decide against me, I will publicly label you a child abuser." -EV] …

[T]he offense of intimidation in Indiana shares common language with past statutes outlawing blackmail. See Meek v. State, 205 Ind. 102 (1933) (quoting a statute defining blackmail, in relevant part, as “accusing or threatening to accuse[ ] any person of any crime punishable by law, or of any immoral conduct which, if true, would tend to degrade and disgrace such person, or in any way subject him to the ridicule or contempt of society”)…. [T]he crime consists of threatening the victim with the intention of placing the victim in fear for a prior lawful act. 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….

[W]e conclude that it is irrelevant whether the conduct Brewington intended to disclose to the public actually occurred or was an outright fabrication…. [T]he State was not required to provide evidence that Brewington’s public statements about Judge Humphrey were knowingly false.

Today, the Indiana Supreme Court rejected this reasoning from the Indiana Court of Appeals. The statute, the court concluded, could not constitutionally be applied to threats of exposure to contempt through opinion, or even through sincere factual errors (assuming the speech is on a matter of public concern). Threats of constitutionally unprotected libel or slander can be punished under the statute, but threats of harsh criticism cannot be:

[F]ree speech principles would be meaningless if they ceased to apply when a statement is ignorant, offensive, or unfair. Indeed, that is when the need for free-speech protection is at its greatest. The First Amendment is broad enough to protect “Priests Rape Boys” picket signs as protected political speech in connection with a funeral Mass for a fallen soldier. Snyder v. Phelps. And it is broad enough to protect the crude “outhouse rendezvous” parody in [Hustler v. Falwell]. It is therefore certainly broad enough to protect Defendant’s ill-informed — but by all indications, sincere — beliefs that the Judge’s child-custody ruling constituted “child abuse” or “child abducting,” and that the ruling was based on improper motives. The Court of Appeals erred in relying on Defendant’s overheated rhetoric about “child abuse,” or the falsity of that characterization, to affirm his conviction for intimidating a judge. Even if Defendant’s “child abuse” and other statements about the Judge could be understood as assertions of fact, not hyperbole, they are protected by the First Amendment because there is no proof of actual malice….

[T]he First Amendment and the Indiana Constitution demand a showing of actual malice before the State may impinge on assertions of fact — even false ones — about public figures or issues of public concern; and rhetorically hyperbolic expressions of opinion are always protected ….

The court also concluded that defendant’s accusations of “child abuse” and “abducti[on]” against the judge, which the lower court viewed as factual falsehoods, were instead constitutionally protected opinion. “Reasonable readers would understand ‘child abuse’ or ‘abducting’ as Defendant’s exaggerated opinion of the decree’s custody ruling — not factual assertions that the Judge actually beats or kidnaps children.” That too is an important conclusion, for reasons given here.

And the court concluded that even threats of violence are punishable under Indiana law only if they are intended to put the target in fear (and not just sufficient to put a reasonable person in fear). In the process, the court suggested that the First Amendment precedents are best interpreted as requiring such a conscious purpose; there is a disagreement among lower courts on the question. (Compare, for instance, this Ninth Circuit decision with this Sixth Circuit decision. Indiana here joins the Ninth Circuit, though most federal circuits are on the side of the Sixth.)

The court, however, affirmed Brewington’s conviction. The court held that there was enough evidence from which the jury could find threat of violence, and not just threat of harsh criticism. And though the jury was erroneously instructed in a way that could lead them to convict based either on threat of violence or threat of criticism (without explaining which basis they used), the trial lawyer did not object to the instruction, and this failure to object was “invited error” — likely a conscious strategic decision:

Here, counsel’s lack of objection to the general verdict appears to have been part of a conscious “all or nothing” strategy. One common example of such a defense arises in murder cases, when a defendant chooses not to have the jury instructed on the lesser included offense of voluntary manslaughter, so that any shortfall in the State’s proof of mens rea will result in complete acquittal, rather than merely a lesser conviction. In a similar vein, Defendant here chose to withdraw a proposed final jury instruction on harassment as a lesser included offense of intimidation, arguing instead that all his statements were intended only as protected opinions on an issue of public concern, or petitions for redress of grievances, and not to cause fear or for any other threatening purpose. In effect, that approach sought to exploit the prosecutor’s improper reliance on “criminal defamation” to the defense’s advantage — focusing the jury on the clearly protected aspects of Defendant’s speech, and on that basis to find the ambiguous aspects of his conduct to be protected as well.

Instructing the jury on the text of the federal and state constitutional free-speech protections, but not actual malice, appears to have been a strategic calculation to that end — not an ignorant blunder. Counsel obviously recognized the free-speech implications of this case, and asked for the jury to be instructed verbatim on the language of the First Amendment and Article I, Section 9 of the Indiana Constitution, both of which were given without objection. Reciting those provisions, without discussing the additional protections of the actual malice standard, yields a decidedly broad-brush view of free-speech principles — but his free-speech defense strategy depended on that broad brush. Requesting instructions on actual malice [i.e., knowingly or recklessly false statements of fact -EV] would have called the State’s attention to the distinction it repeatedly overlooked between threatening the targets’ reputations under Indiana Code section 35-45-2-1(c)(6)-(7) and threatening their safety under subsections (c)(1)-(3).

I can’t speak to whether this decision is correct given the trial record and the state of Indiana “invited error” law. But I am glad that the Indiana Supreme Court recognized and reversed the legal error in the Indiana Court of Appeals opinion — the thing that my clients (who were the amici, not the defendant) were concerned about. Threatening to harshly criticize people’s actions, and thus to expose them to ridicule and disgrace (at least outside the special case of blackmail) is legal again in Indiana.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy. Before coming to UCLA, he clerked for Justice Sandra Day O'Connor on the U.S. Supreme Court and for Judge Alex Kozinski on the U.S. Court of Appeals for the Ninth Circuit. Volokh is the author of the textbooks The First Amendment and Related Statutes (4th ed. 2011), The Religion Clauses and Related Statutes (2005), and Academic Legal Writing (4th ed. 2010), as well as over 70 law review articles. Volokh is also an Academic Affiliate for the Mayer Brown LLP law firm.
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