Ind. Supreme Court Rules In Blogger’s Judge Intimidation Case
By Mike Perleberg
Update published at 2:08 p.m.:
Dearborn-Ohio County Prosecutor Aaron Negangard has reacted to Thursday’s Indiana Supreme Court decision in the case of blogger Dan Brewington.
Negangard said he was pleased with the court’s decision.
“I think they got it right,” he said.
When asked how the justices’ opinion of the highly-publicized case might be viewed by some First Amendment supporters, Negangard said the case has never been about freedom of speech.
“It’s a case of a criminal act by a person intimidating judges and witnesses until they relented to his demands. He tried to hide behind the First Amendment. This has never been a case of the First Amendment. That’s not what the jury found, the Indiana Supreme Court found, or the Court of Appeals found,” said the prosecutor.
Original story published at 1:33 p.m.:
(Indianapolis, Ind.) – The Indiana Supreme Court is upholding an appeals court ruling that an internet blogger’s statements about a Dearborn County judge were not protected free speech.
The opinion issued Thursday by the state’s highest court affirms Dan Brewington’s convictions in a 2011 jury trial on charges of Intimidating a Judge (Class D felony) and Attempted Obstruction of Justice (Class D felony). The decision was unanimous among the five justices.
It’s a case that has captured the attention of First Amendment advocates across the country. It was even featured in a recently-released documentary chronicling issues in the family court system.
“It is every American’s constitutional right to criticize, even ridicule, judges and other participants in the judicial system—and those targets must bear that burden as the price of free public discourse,” said Justice Loretta H. Rush in the opinion. “But that right does not permit threats against the safety and security of any American, even public officials, regardless of whether those threats are accompanied by some protected criticism.”
Brewington, 40, of Norwood, Ohio, wrote extensively at his blogs – Dan’s Adventures in Taking on the Family Courts and www.DanHelpsKids.com – about the handling of his 2008 divorce and child custody case which was transferred from Ripley County court to Dearborn Circuit Court Judge James D. Humphrey. Some of the posts saw Brewington call Humphrey a child abuser for eliminating custody of his two daughters. He wrote of how he might like to punch in the face the custody evaluator – Dr. Edward Connor – appointed by Humphrey. Although he claimed to have no knowledge they were married, the blogger also urged followers to send complaints to Humphrey’s wife.
READ THE FULL INDIANA SUPREME COURT OPINION HERE (PDF).
In February of 2011, a Dearborn County Grand Jury indicted Brewington the intimidation of a judge and obstruction charges, as well as two counts of Intimidation (Class A misdemeanor) and single counts of Perjury (Class D felony) and Unlawful Disclosure of Grand Jury Proceedings (Class B misdemeanor). In the ensuing October jury trial presided over by a specially-appointed out-of-county judge, Brewington was convicted on all charges except the unlawful disclosure count.
Brewington was sentenced to five years in an Indiana prison, a sentence he completed last September with good time credit.
In his appeal, the Indiana Court of Appeals ruled in January of 2013 that Brewington’s convictions for intimidating Connor and the judge’s wife along with the perjury conviction be overturned. However, the intimidation charge relating to the judge and the obstruction charge remained in place.
Brewington wasted little time in taking the appeals court decision to the Indiana Supreme Court. The justices agreed to accept the case after hearing oral arguments in September.
“There would be no doubt about that conclusion if Defendant, all in a single episode, had violently shouted and slammed piles of books in the courtroom, shaken his fist at the Judge and the Doctor, and told them, “You crooked child abusers! I’m a pyromaniac, I have guns and know how to use them, I’d like to beat you senseless, I know where you live, and I’m going to hold you account-able!” Under those circumstances, it would be obvious that Defendant was making an unprotected “true threat” against the victims, even if the phrase “crooked child abusers” was protected speech. Defendant’s threats neither lose force, nor gain protection, merely because he built them up over the course of a years-long campaign of harassment. In fact, they may be even more insidious…” -Indiana Supreme Court Justice Loretta H. Rush in opinion of Brewington v. State of Indiana
In Thursday’s 35-page opinion, Rush wrote that although the U.S. and Indiana constitutions offer sweeping protections for speech about public officials – such as elected judges – but there is no protection for “true threats”, including veiled or implied threats.
“Fear for one’s reputation is often the price of being a public figure, or of involvement in public issues. But fear for one’s safety is not,” Rush stated.
The justices agreed with prosecutors and the appeals court that when Brewington was asked to tone down his attempts to intimidate witnesses in the child custody case and take steps to maintain his relationship with his two daughters, Brewington – unemployed following the divorce – instead escalated his efforts to “full-time” against Humphrey and Connor.
Brewington posted the judge’s home address. He wrote about appearing a separate court hearing where Connor was testifying that his presence made the doctor “a little nervous and from a psychological standpoint he probably should have been.” Another post saw Brewington prose about punching a hypothetical custody evaluator that “made me so mad I wanted to beat him/her senseless.”
The postings led Humphrey to install a home-security system, keep a firearm ready at home for his family’s protection, notify his children’s schools about the threats, and arrange police escorts for his wife’s commute to work.
Rush said that any one of the statements alone may only be ambiguously threatening.
“But reading them as a whole within the totality of the circumstances shows that at least by the time he published the victims’ addresses, (1) Defendant intended his long-running pattern of communications and conduct to be a credible implied threat to his victims’ safety in retaliation for their lawful roles in his divorce case, and (2) his victims quite reasonably took his threats seriously,” Rush wrote.
Though his threats were not overt, Rush asserted that Brewington knew the threatening potential of publishing the judge’s address. She wrote that two months after Brewington posted Humphrey’s address, he blogged that he was disturbed to receive a voice message from a police detective who knew where his mother lived.
“If Defendant found it threatening that a law-enforcement officer knew his mother’s address, he surely recognized that the family of a public figure who had sentenced (and before that, prosecuted) violent criminals would be no less concerned by an angry, vindictive person knowing and broadcasting their address,” Rush said in the opinion.
Brewington’s appeal was also on the grounds that he received ineffective counsel from his appointed defense attorney during his criminal case. Rush called the attorney’s strategic by all indications a deliberate and eminently reasonable strategic choice.
Neither Brewington nor Dearborn-Ohio County Prosecutor Aaron Negangard, who prosecuted the blogger in the 2011 criminal trial, were not immediately available for comment on the supreme court ruling.