In 2011 Daniel Brewington was convicted of intimidating a judge in Indiana. His only weapon was his blog, where Brewington had unleashed the invective that put him in prison for the past two-and-a-half years. This week the Indiana State Supreme Court will determine whether Brewington got a bad deal--and maybe also whether the pen is truly mightier than the sword. Denied visitation rights with his two children in 2009, Brewington took to the web to excoriate the system that, as he saw it, stole his legitimate rights as a parent. He called the judge who issued the order a "child abuser" on the logic that to deny children a relationship with a qualified father was tantamount to abusing those children. Brewington was angry and wrote angrily. Relating what he saw as the judge's irresponsible decision-making to playing with fire, he once claimed that he was himself an "accomplished pyromaniac." The judge read that as a threat; imagine what the judge would have thought if Brewington had used the word he was looking for--arsonist.
But a failure of linguistic acumen didn't make Brewington appear any less dangerous to the judge or the Indiana jury, which convicted him of intimidation, attempts at obstruction of justice, and perjury after a three day trial. Brewington clearly did not go gentle into this good fight, but UCLA law professor Eugene Volokh, who was invited to help argue this important case about First Amendment incursions, has noted that the Indiana intimidation law risks subverting itself, by allowing the law to intimidate citizens, rather than protecting them. Brewington's rants were vituperative, but did they emanate from an unhinged psyche? Was the judge ever in physical danger? It's always hard to say--and hindsight inevitably favors caution in such cases, where in the event of a crime there is always ample evidence of forewarning to be seen in retrospect. Yet most people use hyperbole to express themselves--it's the equivalent of shouting in our ever noisier world. And hyperbole (like most shouting) is protected under the Constitution. As Volokh writes in his brief, considering the matter of Brewington calling the judge a "child abuser": No reasonable reader would understand the posts as accusing Judge Humphrey of literally “abus[ing] children.” He's probably not even a real pyromaniac. But you never know. The big question is was he allowed to say so?
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