The Indiana Supreme Court differentiated between threats against one’s reputation and threats against one’s safety in upholding the conviction of a southern Indiana man for intimidation against a judge.

An amicus brief supported by the HSPA Foundation and argued before the five-justice panel by UCLA law professor Eugene Volokh made that point as well.

So while Daniel Brewing­ton’ conviction was preserved, the Supreme Court made it clear that such a conviction could not stand if based solely on defamation of a public figure.

There must be a legitimate threat against the safety of the plaintiff, in this case Dearborn County Judge James Humphreys.

In Justice Loretta Rush’s 35-page opinion, the unanimous court made it clear that the U.S. and Indiana constitutions offer “sweeping protections to speech about public officials or issue of public or general concern, even if the speech is intemperate or caustic.”

But the intimidation crime will protect against “true threats,” including those that are implied and intend to put victims in fear for their safety or that of their families.

The state Supreme Court rejected the Court of Appeals opinion on the intimidation statute. The high court ruled that the jury received improper instructions that it could find a crime based simply on a threat of exposing someone to hatred, contempt, disgrace or ridicule through the expression of opinions.

Volokh’s take on the May 1 decision was that Brewington’s conviction was upheld on the grounds that the conviction was an “invited error” by the trial lawyer, since Brewington’s attorney didn’t object to the faulty jury instructions and because of the attorney’s lack of objection to the general verdict, apparently part of a conscious all or nothing strategy.

Though Brewington lost his case, Volokh was satisfied with the high court ruling.

“On balance, then, I think we won – since our goal was to overturn the bad lower court decision and make clear that the intimidation statute couldn’t constitutionally be used to punish threats of exposure to disgrace (setting aside the special case of blackmail),” Volokh wrote in an email following the decision’s release.

Volokh’s pro bono brief argued that the Court of Appeals decision could criminalize constitutionally protected speech that could impact the ability of journalists, public advocates, politicians and ordinary citizens to criticize the actions of judges or other public officials.

HSPA Foundation learned of the case from Steve Andrews, adjunct assistant professor at Indiana University, and James Brown, executive associate dean emeritus, IU School of Journalism at IUPUI.

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