An Indiana man who blogged bitterly about how a court handled his divorce and child custody and as a result is now serving a 5-year prison sentence for Intimidation of a Judge, Attempt to Commit Obstruction of Justice, Perjury, and two lesser counts of Intimidation, has found a friend in Prof. Eugene Volokh of Volokh Conspiracy. Volokh writes that he finds the recent intermediate appellate decision in the case, Daniel Brewington v. State of Indiana (PDF), to be unconstitutional for "basically concluding" that harshly and repeatedly criticizing someone for that person’s past conduct can be criminally prosecuted:
This, I think, clearly violates the First Amendment, and has a potentially very broad sweep. The law doesn’t just apply to disgruntled litigants, but also to newspaper columnists, advocacy groups, politicians, and so on. Under the court’s view, someone who goes to a legislator and says, “If you vote for this law [or because you voted for this law], we’re going to condemn you so much that your constituents will have contempt for you and vote you out of office,” would be guilty of a crime. Indeed, someone who simply keeps writing harshly critical columns about a legislator’s actions, without an overt threat of future such columns, would be guilty of a crime, too.
Volokh is lining up legal help for Brewington:
Brewington is asking the Indiana Supreme Court to review the case, and I think it would be helpful to have a friend-of-the-court brief supporting that request, and alerting the Indiana Supreme Court to the broader danger posed by the Indiana Court of Appeals opinion. (The Indiana Supreme Court is entitled to pick and choose which Court of Appeals cases it reviews, so the brief needs to persuade the Indiana Supreme Court to focus its time on attention on this case.) I plan to write that brief, pro bono.
I already have local counsel lined up, and a likely amicus organization, but I’d like to have more, including those generally seen as on the left, those generally seen as on the right, and those generally seen as elsewhere. If you’re involved with an Indiana advocacy, political, or journalist group — or for that matter an Indiana newspaper, whether professional or student-run — and you think the organization might be interested in joining, please let me know.
Brewington continues to blog from prison, with the help of his family.
HT: Indiana Law Blog