The Supreme Court recently heard a free speech dispute over a 27-year-old’s angry Facebook rants, and now another guy is asking the justices to weigh in on whether his vitriolic blog posts deserve First Amendment protection.

That blogger, Dan Brewington, filed a petition in October asking the Supreme Court to overturn his conviction of violating an Indiana law against “intimidation” for writing highly unflattering blog posts about the judge who sided against him in a custody battle.

Perhaps the worst thing in those blog posts was the repeated claim that Judge James D. Humphrey was a “child abuser,” and here is how Brewington justified that claim to me: “He was taking away children from capable parents.”

Brewington, now 41, already served two and a half years in prison for allegedly communicating threats to Humphrey. While he’s already done his time, on Jan. 9 the Supreme Court will consider whether to hear his case and potentially overturn his conviction and clear his name.

“I’ve never been in trouble. I’m a friendly guy. I’m known around the neighbourhood for volunteering,” Brewington, who does computer-aided design from home, told me over the phone. “I don’t know why they spent that much time coming after me.”

Brewington’s troubles began during his divorce in 2007, when a clinical psychologist hired to do a custody evaluation decided that joint custody couldn’t work because he and his estranged wife had trouble communicating. Instead, the psychologist, Dr. Edward Connor, said Brewington should get “liberal visitation” while his ex got full custody, according to a lower court ruling in the case.

In response, Brewington released “a torrent of abusive letters” to Connor, according to that lower court ruling. He filed an official complaint against Connor and started a blog and posted “negative comments” about the psychologist, the ruling said. This reaction apparently left a bad impression on Judge Humphrey, who granted his Brewington’s ex full custody and found Brewington “to be irrational, dangerous, and in need of significant counseling.”

In addition to his negative posts about Connor, Brewington wrote at least nine articles about Humphrey calling him “corrupt,” accusing him of “unethical/illegal behaviour,” and referring to him as a “child abuser,” court documents said. 

Brewington ended up being indicted and convicted of a number of counts, including felony intimidation for his posts about the judge. An appeals court ultimately vacated a couple of those counts but left the count in relation to the judge intact. The Indiana Supreme Court affirmed the ruling, noting in its opinion that Brewington had at one point published the judge’s home address.

While Brewington’s statements about the judge in isolation “might be no more than ambiguously threatening,” those statements took on a different tone in the context of his behaviour, according to the court. That context included “the escalating tone and frequency and long-running duration of his diatribes,” the court found.

“Within that context, Defendant telling his victims that he knew where they lived was clearly intended to make them justifiably feel unsafe even in their own homes,” the court found.

For his part, Brewington argued in his petition that the First Amendment is designed to give people the freedom to criticise public officials like Judge Humphrey. While the Supreme Court will consider whether to take his case during its Jan. 9 conference, it’s an extreme longshot that the case will ever reach the high court.

Still, Brewington’s case has attracted some national press, as well as the attention of legal heavyweight Eugene Volokh, who filed a “friend of the court” brief on his behalf last year. Volokh wrote a blog post suggesting a ruling against Brewington would open the door for people to get prosecuted for criticising lawmakers, executives, businesspeople, and others.

It’s not clear whether a Supreme Court ruling would affect Brewington’s custody case. He hasn’t seen his children in five years.

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