FAN 13.2 (First Amendment News) — Indiana High Court Affirms Right to Criticize Judge

The CaseBrewington v. Indiana (No 15S01-1405-CR-309, May 1, 2014)

The Vote: Unanimous

The AuthorJustice Loretta H. Rush

The LawyerJames Bopp, Jr. (for Defendant)

Facts: (as stated in Court opinion)

In his blog posts, Defendant’s criticisms of the Judge were rather generalized—contending that the Judge “has abused my children” or otherwise done “mean things to my children and my family,” was guilty of “criminal conduct,” or was simply “crooked,” or “a nasty evil man.” But he also posted a copy of his August 24, 2009 “Motion to Grant Relief from Judgment and Order” online  in which he alleged that the Judge:

Justice Loretta Rush

Justice Loretta Rush

  • “has a substantial conflict of interest as[ he] was aware that Dr. Connor was not licensed to practice psychology by the State of Indiana when [he] had appointed Dr. Connor to perform psycho- logical services for an Indiana Court,”
  • “conducted himself in a willful, malicious, and premeditated manner in punishing the Respondent for attempting to protect the parties’ minor children, the Counties of Ripley and Dearborn, and the States of Indiana and Kentucky from the actions of Dr. Edward J. Connor by terminating the Respondent’s parental rights,”
  • “robbed [Defendant’s] parenting rights as revenge for fighting injustice,”
  • “caused irreparable damage to the Respondent’s children in the Court mandated child abuse [sic]” by “illegally eliminating their father from their lives out of the Court’s self-interest,” and
  •  used “child abducting tactics” by issuing the divorce decree.

In the motion, Defendant also threatened to “fil[e] criminal complaints with the Sheriff’s department and Prosecutor’s office for child abuse,” and to contact government officials, local churches and schools, social service agencies, and community organizations “in an attempt to contact other victims and to help bring public awareness to the atrocities that take place in the Ripley and Dearborn County Courts.” And he concluded the motion by seeking relief “due to fraud” by the Judge, the Doctor, and opposing parties and counsel—and echoing his previous efforts seeking Judge Taul’s recusal, he further demanded “the immediate resignation of Judge James D. Humphrey from the bench for the horrendous crimes committed against the Respondent and his children.”

Judgment

The First Amendment “is . . . certainly broad enough to protect Defendant’s ill-informed—but by all indications, sincere—beliefs that the Judge’s child-custody ruling constituted “child abuse” or “child abducting,” and that the ruling was based on improper motives. The Court of Appeals erred in relying on Defendant’s overheated rhetoric about “child abuse,” or the falsity of that characterization, to affirm his conviction for intimidating a judge. Even if Defendant’s “child abuse” and other statements about the Judge could be understood as assertions of fact, not hyperbole, they are protected by the First Amendment because there is no proof of actual malice.”

While his criticism of the judge was protected, the Court concluded that other statements made by the Defendant constituted “true threats” and were thus unprotected under the First Amendment. Said the Court:

It is every American’s constitutional right to criticize, even ridicule, judges and other parti- cipants in the judicial system—and those targets must bear that burden as the price of free public discourse. But that right does not permit threats against the safety and security of any American, even public officials, regardless of whether those threats are accompanied by some protected criti- cism. Defendant’s true threats against the Judge and the Doctor therefore find no refuge in free speech protections. To the contrary, they undermine the core values of judicial neutrality and truthful witness testimony on which every aggrieved citizen depends.

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