Indiana Intimidation Law Challenged on Free Speech Grounds

Posted June 18, 2013 in Government The Internet & The Law by

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A state law against making intimidating speech will be receiving First Amendment scrutiny from the Indiana Supreme Court.

It all started with the breakup of a marriage. Unhappy that he was losing contact with his children, Daniel Brewington unleashed a tirade of incensed internet posts against the judge and others involved in his divorce proceedings, including calling the judge a child abuser and making an ominous reference to being “quite the accomplished pyromaniac.”

For his trouble, he was tried and convicted under an intimidation law that criminalizes legitimate threats of violence and blackmail as well as speech that could “expose the person threatened to hatred, contempt, disgrace, or ridicule.”

The defendant took his case to an appeals court, which mostly upheld the conviction.

Now a coalition of free speech groups, newspapers and law professors has challenged not so much the details of Brewington’s particular dispute but of the law itself that was used to convict him.

“If the Court of Appeals decision is allowed to stand, then much criticism of legislators, executive officials, judges, businesspeople, and others — whether by newspapers, advocacy groups, politicians, or other citizens — would be punishable,” UCLA Law Professor Eugene Volokh wrote in an amicus brief.

The state Supreme Court will hear arguments this fall.


Hatred and Contempt

In his posts Brewington called the judge a child abuser, as well as a corrupt man who engaged in “unethical/illegal behavior.” Whether the accusations are true or not shouldn’t be relevant for the criminal proceedings. Rather, aggrieved parties can bring a civil defamation action against malicious untruths.

Alan J. Howard

The real issue is whether the language in the Indiana law that appears to protect officials from “hatred, contempt, disgrace, or ridicule” is in violation of the First Amendment to the U.S. Constitution.

Courts have already roundly decided that the right to free speech is not absolute. “There is a category of unprotected speech that the government can criminalize, that they have labeled a true threat,” says Alan J. Howard, a professor at St. Louis University School of Law.

“A true threat would be speech where someone said to someone else, if you do this I will physically hurt you, or if you don’t do something I will physically hurt you,” Howard explains. “Give me your money or your life.”


Political Hyperbole

Such threats are uncontroversially criminal. On the flip side, merely criticizing a public official is uncontroversially protected speech. The filers supporting the appellant are arguing that the Indiana statute goes over the line into banning critical speech.

“That language is reminiscent of what was used in the alien and sedition law way back, which would clearly be found today to be unconstitutional,” Howard says.

On the other hand, the state sees Brewington’s diatribes “as not political hyperbole, not just criticism of the judge in some of the decisions, but as going beyond that, in effect saying in light of the decisions you’ve made, I’m going to hurt you,” the professor says.

The judge clearly felt threatened, going so far as to take gun training classes, installing a home security system and getting police escorts to and from the courthouse.

However, Brewington is maintaining that a true threat was never the intent, just exercising the constitutionally protected right to speak against the government. “Brewington may not have had the rhetorical skill of Thomas Paine,” the appellant’s lawyer said to USA Today. “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.”

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