With our ever technical society, utilizing all forms of technology from Facebook, Twitter, blogging, book reviews on amazon.com, and comments on news stories at any number of national and international news outlets, when does expressing one’s opinion cross the line from constitutionally protected free speech1 to a criminally punishable crime?
Here at Dixon & Moseley we regularly utilize blogging to reach the public and legal community with relevant updates on the law and legal process in many areas of concern and interest; many other lawyers also do so to provided general and helpful information to the public, as do many other professionals. Professions are complex, and in all fields, educated consumers are key to better products and services. However, recent Court of Appeals decision has caused some controversy about the tension between free speech and other violations of other laws.
In Daniel Brewington v. State of Indiana, the Court of Appeals upheld a trial court conviction of a blogger who voiced his opinions regarding a recent family law court decision that was unfavorable towards him.2 Husband/Blogger and Wife were married in 2002 and divorced in 2007, the couple had two (2) children together. During the divorce proceedings the couple vehemently disagreed on the issue of custody of the children, and ultimately submitted to a Custody Evaluation. Father/Blogger received what he believed were extremely unfavorable results following the evaluation and the ultimate court order, so he took to the internet to voice his opinions regarding the custody evaluator, and the trial court judge. Many comments on Father’s blog posts accused both the custody and evaluator of unfair practices, including concealing evidence, being malicious, and Father called out to the blogging community to support him in reporting the custody evaluator and judge for unethical behavior.
As any family law attorney will know, judges and custody evaluators have very difficult jobs and serves as neutrals to effectuate the best interests of the child.
Father/Blogger was charged criminally for his comments on his blog posts, for intimidation, attempted obstruction of justice, perjury, making false statements during a grand jury proceeding, and unlawful disclosure of grand jury proceedings. Father/Blogger was convicted by a jury of 5 of the 6 charges, and sentenced to 5 years imprisonment.
Father/Blogger appealed his criminal conviction. After issuing a 44 page opinion, the Court of Appeals upheld three counts, and vacated two counts related to intimidation of the custody evaluator and the judge’s wife. Father/Blogger has filed a Petition to Transfer the matter to the Indiana Supreme Court, which the Indiana Supreme Court has not ruled if it will grant or deny transfer.
This case has sparked considerable controversy in Indiana, as it demonstrates the rather blurry the lines between constitutionally protected free speech and prohibited criminal threats.
Often the issues of social media interact with the highly emotional time in any person’s life when going through a divorce. Because of this, we often caution and talk to clients about how to be responsible and conscientious as to what comments are posted online, especially when emotions are at an all time high. While free speech is a tenant of the US Constitution, and Indiana Constitution one must consider that just because speech may be free, it may not always be wise. Additionally, one must carefully consider the type of speech he or she is publishing on social media, as not ALL speech is protected, such as the true threats Father/Blogger made against the custody evaluator and judge in this case.
If this is a topic of interest to you, Dixon & Moseley, P.C. would also direct you to In re the Paternity of T.P., 920 N.E.2d 726 (Ind.Ct.App.2010). This is a case where this Court addressed a gag order on mother talking about the case with third parties. The more you understand about the law, the better citizen you will be.
We hope that this blog post has been helpful in how social media and the right to publish one’s opinion may interact and cross over into unprotected speech. Dixon & Moseley, P.C. practices throughout the state of Indiana. This blog post was written by attorney, Lori Schmeltzer.