Indiana Supreme Court Heard Oral Arguments in State v Brewington Today

12 September 2013

Dan Brewington was released from prison one week ago today after serving his sentence for a conviction of threatening a judge. The alleged threats were statements that Mr Brewington made in a blog posting about Judge James D. Humphrey of Dearborn County Circuit Court who stripped Brewington of his rights to his children following a contentious divorce proceeding.

The five justices engaged in a rigorous dialogue with attorneys for both Brewington and the State for an hour this morning. The sole consideration for the court at this time is whether to accept transfer of the case from the Indiana Court of Appeals which upheld the conviction.

Mr Brewington alleges that the statute under which he was convicted infringed upon his First Amendment right of free speech. Mr Brewington does not dispute that his statements that the judge was a child abusers because he had arbitrarily denied the children access to their father was meant to bring public shame to the judge. Instead, he argues that ridiculing someone for an action and threatening to bring additional condemnation for continued or further actions is protected speech. He likened it to op-ed pieces in newspapers that vigorously condemn and ridicule public officials or sports commentators who malign a player or coach for a decision made. He asks, should they all be subject to criminal prosecution for their statements?

Mr Brewington was joined by the State of Indiana, The Indianapolis Star, The Indiana Civil Liberties Union, The Indiana State Press Association and other free speech organizations in seeking review of the case by the Indiana Supreme Court. This case has far reaching broader First Amendment consideration that have lead to it being followed nationally.

Chief Justice Brent Dixon indicated that the decision whether to accept the case hinged upon properly made and preserved objections at the trial court level. Under the invited error doctrine if Mr Brewington didn't correctly object at the trial court level then procedurally the Justices are precluded from hearing the case. At issue is whether Mr Brewington was required to specifically object to the use of the word “or” in place of “and” in the jury instructions. Both the State and Mr Brewington countered that it would be “fundamental error” to allow the appellate ruling to stand. A “fundamental error” is one which makes a fair trial impossible such as a defendant being required to give a police statement and then using those statements against him even though he sought legal counsel and wanted to remain silent.

The justice will now consider the matter and issue their decision on whether to accept transfer.

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