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A balancing act

Justices distinguish threats from criticism

Blogger Dan Brewington’s conviction for intimidation was upheld by the Indiana Supreme Court last week. Paradoxically, the court’s ruling was a victory for freedom of speech.

The controversy began in 2008, when a southeastern Indiana judge denied Brewington access to his children after a psychiatric evaluation said he showed tendencies toward violence.

The former Dearborn County man then began a series of harsh online attacks. He called the judge a “child abuser” for denying him visitation and posted the judge’s address online. He referred to himself as “an accomplished pyromaniac.”

Brewington, who now lives in Ohio, was charged under Indiana’s anti-intimidation law, convicted in a jury trial and imprisoned.

In affirming a state Court of Appeals ruling upholding that conviction, the Supreme Court agreed that Brew- ington had threatened the judge but rejected the lower court’s finding that Brewington’s digital barrage of insults was a crime in and of itself.

A coalition of groups had challenged the original conviction on free-speech grounds. But Eugene Volokh, a UCLA law professor who had written a brief in the case on behalf of the Hoosier State Press Association, said Friday the Indiana Supreme Court’s decision is to be applauded.

Even though nothing in Brewington’s online writing was a clear threat against the judge, the court found that, over time and in context, his pronouncements were menacing. Volokh compared some of Brewington’s words to a man walking into a business and saying, “This is a really nice store. It would be a shame if something were to happen to it.”

If that were a person selling fire-protection systems, that would be a straightforward statement, Volokh said.

But if the man were attempting to extort the storeowner, the words would take on an entirely different connotation.

“There was enough evidence of something that could be a threat of violence,” Volokh said.

The court recognized, though, that “harsh criticism can’t be a crime,” Volokh continued. And it noted that “hyperbolic statements that are not meant to be taken literally,” such as Brewington’s use of the phrase “child abuser” in the context of the judge’s denial of visitation, are not actionable. If it had let those points stand, the precedent could have had a chilling effect on speech by anyone wanting to criticize a public official or that official’s actions.

Brewington’s threats crossed the line. His complaints and name-calling did not. The court’s decision is one of those that could rightly be called solomonic.