An interesting First Amendment story in the New York Times, "Jury Nullification Advocate is Indicted," describes the legal travail of Julian Heicklen who, since 2009, has been passing out pamphlets at courthouse entrances encouraging jurors to render verdicts based on conscience when their conscience and the law are in conflict. The indictment says that Heicklen "attempted to influence the actions and decisions of a grand and petit juror of ..the US District Court for the Southern District of New York, upon an issue and matter pending beore such juror, and beore a jury of which he was a member, and pertaining to his duties, by writing and sending to him a written communication in relation to such issue or matter, to with, HEICKLEN distributed pamphlets urging jury nullification immediatley in front of an entrance [to the court]." Eugene Volokh, who thinks Heicklen's actions are protected speech, posts on the state of the law on the issue, and presents this hypothetical:
Here’s a concrete hypothetical for looking at this: Say that Mr. Heicklen’s brother stands on a street corner and hands out leaflets to passersby praising the propriety of jihad, of bombing abortion clinics, or of a range of other crimes. That speech is protected by the First Amendment, despite the possibility that it might persuade some recipients to commit very serious crime. See Brandenburg v. Ohio. And if the government argues that restricting such speech is narrowly tailored to a compelling government interest in preventing murder or other crimes, the courts will reject that, again citing Brandenburg.Now the other brother, Mr. Heicklen himself, stands a block over, handing out to jurors leaflets praising jury nullification. The government argues that restricting such speech is narrowly tailored to an interest in having jurors decide based on the instructions that the court gives them — an interest that, even if seen as very important, is less important than the interest in preventing murder. How can it be that one brother’s leaflets urging non-criminal but, in the view of some, socially harmful behavior (even such behavior by jurors) are constitutionally unprotected while the other brother’s leaflets urging criminal, indeed murderous, behavior are constitutionally protected?
As usual, the comments to Volokh's post are worth reading through. A sample:
- I find it facially absurd to suggest that there is a free-speech right for strangers to lobby an empaneled jury. Whether jury nullification is legal or not strikes me as a side point; it is legal for a jury to convict the defendant, but that doesn’t mean you can start calling up jurors, or handing them leaflets on the courthouse steps, encouraging them to convict. The power to restrict outside speech aimed at jurors seems essential to the functioning of a fair and impartial justice system.
- It’s important to note for the discussion here that the defendant wasn’t targeting jurors–-he handed out his leaflets to all passers-by, hoping that some would eventually be jurors. That fact makes the prosecution’s case seem almost frivolous to me: if it was “jury tampering,” show me the jury with which he allegedly tampered! Even without that fact, the prosecution here is puzzling and hopefully it will cause political blowback. One enjoyable aspect is that this prosecution, if coverage continues, will probably teach more people about jury nullification than the defendant did by pamphleteering.
