YouTuber and activist Craig Hendry’s appeal on charges that had seen him previously do time in Greene County, Indiana, saw the lower court’s ruling affirmed on Tuesday by the Court of Appeals of Indiana.
Hendry was convicted of a single count of 35-44.1-2-3(d)(5)/MB: False Informing def. makes a false complaint against a law enforcement office last December from charges stemming from an incident where he told the Linton, Indiana, city council that police had unlawfully kicked in his front door and kidnapped him.
The YouTuber was sentenced to 160 days in the Greene County jail, with 17 days credit for time served, which he completed earlier this year. His appeal was for the verdict only as he sought no restitution for the time he had served in the county jail.
Hendry sought to have the False Informing statute declared unconstitutional as he felt that it penalized him for his protected speech.
The court did not agree with his arguments, writing:
The false informing charge here did not rest on Hendry’s characterization of the Linton Police Department as a “terrorist organization” of “tax leeches” or on his description of the officers as “armed thugs.” App. Vol. II, p. 16. Those characterizations—like “blackmail” in Bresler or “traitor” in Austin—are the kind of loaded, undefined epithets that no reasonable listener would take as literal, verifiable accusations. See Bresler, 398 U.S. at 14; Austin, 418 U.S. at 284-86. Nor did the State attempt to prosecute Hendry’s reference to “terrorist organization,” “tax leeches,” or “armed thugs” as such. The charge instead rested on two discrete factual claims: that Linton officers “kicked in” Hendry’s door without legal justification and that they “kidnapped” him. App. Vol. II, p. 16.
Unlike “blackmail” or “traitor,” these were not free-floating epithets. The statements for which Hendry was charged were particularized descriptions of a specific encounter. The statements incorporated a specific timeframe, a specific location, and a specific sequence of events, offered as an example in support of Hendry’s request that the council abolish the department. State’s Ex. 2. The more specific and verifiable a claim, the less plausible it is that a reasonable listener would wave it off as mere exaggeration. See Milkovich, 497 U.S. at 21-22; Davidson, 716 N.E.2d at 33-34. A reasonable jury could find that the level of particularity of Hendry’s statements signaled a factual assertion rather than hyperbole.
False statements of verifiable fact about an officer’s conduct are precisely what the Statute is designed to address. See Ind. Code § 35-44.1-2-3(b), (d)(5) (2023). Hendry’s false statements about kicking in the door and kidnapping were the sort of claims capable of being tested and disproved, which is the hallmark of a factual assertion rather than rhetorical hyperbole. See Milkovich, 497 U.S. at 21; Brewington, 7 N.E.3d at 961.
The record reinforces that conclusion in three respects. First, Hendry made functionally the same claim about his door to Chief Clark by telephone months before he voiced these statements at the Council meeting. He did so not as a rhetorical flourish before a legislative body but as a private complaint and request for payment that prompted an actual investigation. Chief Clark reviewed body camera footage specifically to determine whether the door had been kicked in. Hendry offers no basis for finding that a claim serious enough to trigger a factual investigation when made privately transforms into mere hyperbole when repeated publicly in a different forum.
Ultimately ruling:
Hendry’s statements that Linton police officers “kicked in” his door and “kidnapped” him were not rhetorical hyperbole beyond the reach of the False Informing Statute. The record supports a reasonable factfinder’s conclusion that these were specific, verifiable factual assertions that Hendry knowingly asserted as true and that the State proved false. The False Informing Statute is also not unconstitutionally vague as applied to Hendry: its elements gave him fair notice that knowingly false, specific accusations of rule violations made to the agency that paid the officers’ salaries were prohibited. In addition, those same elements sufficiently constrain enforcement discretion to guard against arbitrary or discriminatory application of the Statute. The trial court did not abuse its discretion in denying Hendry’s motion to dismiss. As Hendry raises no other issues on appeal that were not waived, we affirm the trial court’s judgment.
The ruling comes at a difficult time for Hendry, who is currently out of jail on bond from Vermillion County on unrelated charges. He has described his difficulty in finding work as a convicted felon in the past and has spent a majority of the past two years in jail, robbing him of seeing his newest child grow from infant to toddler.
Hendry is also believed to have been caught up in YouTube’s recent monetization purge, with both of his channels on the demonetized list. While he had been posting old audits on both channels in order to reestablish his user base, those efforts stopped after his apparent demonetization earlier this month.
This is a developing news story.
