Monday, May 5, 2014

Is Brewington v. State a Harbinger of a New Era Allowing Judicial Criticism by Attorneys?

A number of attorneys have contacted me recently excited that the Brewington v. State decision handed down last week by the Indiana Supreme Court may signal a new tolerance for attorney criticism of judges.  Although the non-attorney blogger's conviction for intimidation of the judge was upheld, very strong language in the opinion suggests that non-threatening criticism of a judge is constitutionally protected.

Brewington, which was written by new Justice Loretta Rush, begins:
Justice Loretta Rush
The United States and Indiana constitutions afford sweeping protections to speech about public officials or issues of public or general concern, even if the speech is intemperate or caustic.
"Intemperate" is an interesting word.  When the American Bar Association in the early 1980s adopted Model Rule 8.2, the rule that governs an attorney's comments regarding judges, judicial candidates and others, the ABA specifically declared that Rule 8.2 was a constitutionally-required actual malice standard and that it was rejecting the previous rule (EC 8-6) that required that a lawyer who criticizes judicial officials "should be certain of the merit of his complaint, use appropriate language, and avoid petty criticism..."  The ABA said that the rule had been misused to "penalize criticism considered intemperate in tone." (Emphasis supplied.)

Dictionaries define "intemperate" to mean "having or showing a lack of self-control," "immoderate," "unreasonable," "lacking self-control."  Despite Model Rule 8.2 and its commentary, states across the country, including Indiana, have used Rule 8.2 to sanction attorneys for "intemperate" criticism of judges while holding that judges, among all other public officials, deserved special protection from criticism by attorneys.  One of those Indiana cases involving an "intemperate" comment involved a tenant's attorney who outside the courtroom referred to the (Marion County) Washington Township Small Claims Court as a "Mickey Mouse Court" because the landlord's attorney appeared to be running the court.

In Brewington, the Indiana Supreme Court drew a line between threats to one's reputation and threats to harm:
Fear for one’s reputation is often the price of being a public figure, or of involvement in public issues. But fear for one’s safety is not.

Here, the Court of Appeals failed to distinguish between those two types of fear. Many of Defendant’s statements, at least when viewed in isolation, threatened only to harm the victims’ reputations—hyperbolically accusing them of “child abuse” and the like. To the extent those statements were aimed at a public official or involved an issue of public concern, they are subject to the steep constitutional “actual malice” standard for defamatory speech, and the Court of Appeals erred in relying on them to support Defendant’s convictions for intimidating a judge and attempted obstruction of justice.
The very-well written opinion then proceeds to analyze the facts, determining which of Brewington's comments only threaten reputation and those which could be credibly seen as threats of physical harm.  The Court concluded that some of Brewington's comments were constitutionally protected while others an objective viewer would conclude that other comments, considering a totality of the circumstances,  constituted threats of harm.

Brewington though still had a chance to win.  The key part of the Supreme Court appeal turned on the Court's discussion of the instruction on the crime of intimidation which requires a "threat" which is defined by statute as:
“Threat” means an expression, by words or action, of an intention to:
(1) unlawfully injure the person threatened or another person, or damage property;
(2) unlawfully subject a person to physical confinement or restraint;
(3) commit a crime;
(4) unlawfully withhold official action, or cause such withholding;
(5) unlawfully withhold testimony or information with respect to another person’s legal claim or defense, except for a reasonable claim for witness fees or expenses;
(6) expose the person threatened to hatred, contempt, disgrace, or ridicule;
(7) falsely harm the credit or business reputation of the person threatened; or
(8) cause the evacuation of a dwelling, a building, another structure, or a vehicle.
I.C. § 35-45-2-1(c).
As the Supreme Court, notes, some of those statutory "threats" - such as one saying that a "threat" is exposing a person to hatred, contempt, disgrace, or ridicule" would improperly make criminal constitutionally protected speech  Thus, when the trial court included all the "threats" listed in IC 35-45-2-1(c) in its instruction, the trial court left open the possibility that the jury didn't find Brewington guilty because he physically threatened the judge, which would be unlawful, but because he exposed the judge to "hatred, contempt, disgrace, or ridicule," which would be constitutionally protected speech.

The court disposed of this contentious issue by reviewing the record and concluding that the failure to object to the definition was part of an "all or nothing" strategy of Brewington's defense counsel.  Thus, counsel "invited the error" and thus the alleged error could not be successfully raised on appeal.

The Court began its conclusion with another strong phrase suggesting that criticism of judges will be treated the same as criticism of any other public official:
It is every American’s constitutional right to criticize, even ridicule, judges and other participants in the judicial system—and those targets must bear that burden as the price of free public discourse.
While the language looks indefeasible, I am not yet convinced that the Indiana Supreme Court will conclude at the end of the day that "every American" includes attorneys.  While the U.S. Supreme Court has taken the position that attorneys are no different from other members of the public when it comes to having a First Amendment rights, with the only exception is when an attorney is speaking out about a pending case in such a way as to possibly influence the administration of that case, state supreme courts have ignored those precedents to impose harsh sanctions on attorneys for criticizing judges even without a pending case.  Indiana has led the way in laying the groundwork for those lines of cases.  In the 1979 case, In Re Matter of Terry, the Indiana Supreme Court concluded that shielding judges from attorney criticism protects the public by preserving "a fair, impartial judicial system and the system of justice as it has evolved for generations."  Thus, the Terry Court concluded that, because of this important interest, the First Amendment does not protect attorneyspeech critical of judges, thus cloaking judges with more protection from criticism than every other public official.  Later decisions by the state supreme courts, including Indiana, have continually cited Terry with approval while concluding attorney speech critical of judges is not constitutionally protected.

Is Brewington the dawning of a new era when it comes to courts recognizing the constitutional right of attorneys to criticize judges?  I hope so, but I remain skeptical.

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