Can you believe that in this day and age someone could be jailed just for something he wrote? But that has happened in this state, and unless the Indiana Supreme Court agrees to take up the case of Daniel Brewington, the right of free expression will be so weak here that it is likely to happen again and again.
Brewington was outraged by a southeast Indiana judge's handling of his divorce case, so he began posting about the case on his blog, hundreds of rants calling the judge's actions unethical and illegal. His words were so strong that authorities decided he had crossed the line from free speech to criminal behavior. He was convicted in 2011 of intimidation of a judge, attempted obstruction of justice and perjury. He is in jail to this day, and the Indiana Court of Appeals last month upheld the most serious of his convictions.
If that ruling is allowed to stand, warns University of California law professor Eugene Volokh, “then much criticism of legislators, executive officials, judges, business people and others – whether by newspapers, advocacy groups, politicians or other citizens – would be punishable.” Volokh is one of many people from across the political spectrum urging the Supreme Court to hear the case.
Among the petitioners is the Indianapolis Star, whose editor said that Indiana's intimidation law, which was used in this case, “could be used as a weapon to go after anyone – whether that's a journalist, a private citizen, an activist, whatever the case – who doggedly criticizes the actions of public officials or public figures.”
The problem with our intimidation law is that it is so broad. It rightly makes it a criminal offense to threaten blackmail and physical violence face to face. But Volokh points out that it also prohibits statements that threaten to “expose the person threatened to hatred, contempt, disgrace or ridicule.” That's the rule the Court of Appeals seemed to be using, and it makes the line between harsh criticism and criminal intimidation pretty tricky to negotiate.
Since the dawn of the Internet Age, more and more people have availed themselves of the freedom to speak out, and it can get a little wild and wooly out there in cyberland. Courts need to be more careful than ever not to criminalize speech that should have First Amendment protection. And when they aren't careful, we need to call them on it, even if it exposes them to disgrace or ridicule. If the Indiana Supreme Court does not act, Hoosiers will be more inclined to hold their tongues when they should be speaking their minds.