Supreme Court Considering Blogger's Appeal

Thursday, September 12, 2013 at 7:28 AM

By Mike Perleberg

Dan Brewington

danbrewington.blogspot.com

(Indianapolis, Ind.) – In a case originating in Dearborn County, Indiana Supreme Court justices are considering whether an Internet blogger’s statements about a judge were constitutionally-protected free speech or threats.

Dan Brewington blogged extensively about Dearborn Circuit Court Judge James Humphrey’s handling of his 2008 divorce and child custody case. The Cincinnati resident called Humphrey a child abuser for eliminating his custody of his two daughters. He wrote of how he might like to punch the custody evaluator appointed by Humphrey in the face.

In October 2011, Brewington was convicted during a Dearborn County jury trial of felony Intimidation of a Judge, Obstruction of Justice, Perjury, and two counts of Intimidation. The conviction resulted in a five year prison sentence for the 39-year-old – he was released September 5 after serving about 2.5 years.

This past January, the Indiana Court of Appeals overturned the two Intimidation charges relating to Humphrey’s wife, Heidi, and Dr. Edward Connor, the child custody evaluator appointed in the divorce case. The remaining charges were upheld.

The Indiana Supreme Court will have the final say on whether Brewington’s three remaining convictions will stand or be overturned. In oral arguments made to the justices Thursday morning, both Brewington’s attorney and the state asked to court to grant transfer of the case.

Chief Justice Brent E. Dickson said the court was being asked to consider “substantial constitutional issues.”

The blogger’s attorney, Michael Sutherlin, argued that if Brewington’s postings were protected free speech, then his entire conviction must be thrown out.

“Now we’re really talking about an unfair system that I think he’s complaining about,” Sutherlin said during his allotted 30 minutes to make a case. “The family court system is broken, and when he complains about it he’s now experienced a criminal justice system that may have some faults. They’re taking everything out of context to make him appear as if he’s a serious threat to society.”

But, argued Stephen Creason representing the state from the Indiana Attorney General’s office, Brewington made “veiled threats” against Humphrey in postings showing the judge that he knew his address and bragged about being “an accomplished pyromaniac.”

“He does not have to have actually made a threat to injure. He merely has to express an intent to make you think that he’s going to injure you,” Creason said.

Creason and Sutherlin tried to persuade the judges regarding which of Brewington’s statements were hyperbole, and which were threats. Justice Steven H. David expressed confusion over where the state’s line separating true threat and veiled threat resided.

“It’s the fear that you’re being retaliated for something you had the right to do,” Creason said.

“Isn’t that the object indirectly – if not directly – of every blogger or every commentator to retaliate ‘I don’t agree?’” David said.

Creason said if the court finds that part of Brewington’s conviction is voided on the protected speech constitutionality argument, that the case should be remanded for a new trial.

The tone of the justices through much of the questioning seemed to indicate a siding with Brewington's argument.

“The general verdict is still a problem for me,” said Chief Justice Dickson, also raising concern about the effectiveness of Brewington’s counsel – an appointed public defender – during the trial.

Sutherlin had earlier stated that Brewington’s trial attorney met with him for only 45 minutes prior to the trial, called no witnesses, introduced no evidence, and objected to only two documents submitted by prosecutors. It was a concern that Brewington had blogged about leading up to his trial.

Addressing the perjury conviction, Sutherlin said the prosecution was “stacking up” charges against Brewington. During a grand jury hearing resulting in his indictment, Brewington was attempting to answer a question from Dearborn-Ohio County Prosecutor Aaron Negangard when he was interrupted by the prosecutor.

The justices took Wednesday’s arguments under advisement and will determine a ruling at a later date.

Indiana Attorney General Greg Zoeller issued a statement following the oral arguments.

“The State contends the defendant’s right of self-expression does not include the right to threaten violence or harm against a judge or any other person, and we urge the Supreme Court to leave intact the lower court’s ruling and the felony conviction,” Zoeller said.

A number of First Amendment advocates joined an amicus brief to the state supreme court, including the 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 Magazine, and professors James W. Brown, Anthony Fargo, Sheila S. Kennedy, and Eugene Volokh.

Volokh, a professor at UCLA and author of the Volokh Conspiracy blog, spoke briefly on behalf of the amicus members at the start of the Supreme Court hearing.