(AP) — An Indiana man imprisoned for online rants against the judge who
handled his divorce is at the center of a legal debate over whether his
blog went beyond the limits of protected free speech.
ranging from the American Civil Liberties Union to the conservative
lawyer behind the U.S. Supreme Court's landmark 2010 campaign finance
law ruling — have filed briefs asking Indiana's top court to review a
lower court ruling that upheld Dan Brewington's 2011 conviction for
Brewington's blog included references to arson and beatings, Brewington
said he didn't mean for them to be taken literally, and his supporters
say the real issue is a state law that could potentially make harsh
criticism a crime.
attorney, Michael Sutherlin, who filed paperwork last month asking the
state Supreme Court to review the case, said Friday that Brewington's
conviction was based on an Indiana statute that makes it against the law
just to threaten to expose a person to public contempt or disgrace.
professor Eugene Volokh, who runs a legal blog, said if Brewington's
conviction is allowed to stand, it could endanger citizens' rights to
criticize public officials, businesses and others.
threatens expressly or implicitly to criticize someone, then under this
precedent, regardless of whether there's even any whiff of potential for
violence, there would be no First Amendment defense and this person
could be prosecuted," he said.
friend of the court briefs along with the conservative Eagle Forum,
constitutional scholars, the ACLU and the James Madison Center for Free
Speech, represented by Republican lawyer James Bopp.
never have a beer together, probably," Sutherlin said of the disparate
started when the judge in Brewington's divorce case ordered him to
undergo a mental evaluation before considering giving him visitation
rights to his children. A psychologist said he believed Brewington was
reacted by writing scathing attacks about the judge and psychologist in
letters and online. Court documents said Brewington posted on Facebook
"this is like playing with gas and fire, and anyone who has seen me with
gas and fire knows that I am quite the accomplished pyromaniac."
also said Brewington threatened to beat up the psychologist who
evaluated him, posted the judge's home address online and made remarks
about the judge's wife.
it's important to understand that this isn't just someone who's
criticizing a judge," said Dearborn-Ohio County Prosecutor Aaron
Negangard, who handled the criminal case. "Anyone who questioned him got
harassed. Free speech does not give you the right to harass witnesses in
the justice system."
supporters say his comments were misread or taken out of context. But
Negangard said Brewington used careful language to disguise actual
said he recognized that much of what Brewington said was
constitutionally protected, but "he crossed the line." But Brewington's
supporters say whether he was dangerous isn't the issue.
convicted for what he said, not because of what's in the divorce
papers," Bopp said. "It goes beyond what was clearly over the top
rhetoric as far as I'm concerned, but the First Amendment protects
over-the-top criticism," he added.