Jury Nullification and Free Speech

            Last year Julian Heicklen was arrested under 18 USC 1504, which has been interpreted by prosecutors as criminalizing advocacy for jury nullification. After discussing the facts and the relevant law, I offer two arguments. First, I use Brandenburg v. Ohio to argue that the statute violates the First Amendment facially. Second, I use United States v. Stevens to argue that the statute is overbroad as written and as interpreted.

Facts

Julian Heicklen is a retired chemistry professor at the great Penn State University. Over the past few years, Heicklen has stood outside the United States District Court for the Southern District of New York holding a sign which reads ‘Jury Info’. He would also hand out brochures to passers by advocating that jurors may acquit those charged with breaking laws which the individual juror finds immoral or wrong. It is important to note that neither Heicklen nor the government has alleged that Heicklen had any knowledge if any passersby were jurors not that he targeted jurors in his advocacy in any way. He simply offered information for anyone who approached him.

In the federal system, jurors take an oath to decide the case in front of them “upon the law and the evidence”, which has been interpreted as constraining jurors from acting on disagreement with the underlying law itself. As such, taking the morality of the law itself into account when judging an accused’s guilt or innocence, it is argued, would be a violation of the juror oath, and thus a violation of federal law. So jury nullification has been a controversial issue in United States jurisprudence because it is seen by some as advocating jurors to violate the law. The federal prosecutors charged Heicklen with violating 18 USC 1504, which reads:

Whoever attempts to influence the action or decision of any grand or petit juror of any court of the United States upon any issue or matter pending before such juror, or before the jury of which he is a member, or pertaining to his duties, by writing or sending to him any written communication, in relation to such issue or matter, shall be fined under this title or imprisoned not more than six months, or both.

Nothing in this section shall be construed to prohibit the communication of a request to appear before the grand jury.

In November 2010, under this premise, federal prosecutors charged Heicklen with attempting to influence jurors.

             It’s important to note, too, that the Supreme Court has regularly listed four reasons for protecting free speech. First, the truth will be found through a free marketplace of ideas. As such, like other markets, there should be a little regulation as necessary to let the truth rise. Second, democracy itself requires an informed citizenry. There must be free expression in order to discuss governance itself. Ultimately, this allows for the development of better citizens. This is exactly the role Heicklen was playing by advocating jury nullification. Third, free expression must be guaranteed because we as human being develop best as expressive individuals with liberty and autonomy. Lastly, the government itself is incapable of identifying truth, and as such has no place in the regulation of it. It is clear that Julian Heicklen’s actions are constitutional the proceeding jurisprudential reasons.

The statute, as applied, is a prima facie violation of the First Amendment.

                        The First Amendment to the Constitution states, in relevant part, “Congress shall make no law… abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble...”

A test of this language came in 1969 when the U.S. Supreme Court was presented with an appeal by a KKK member who spoke at the group’s march. He stated, inter alia, “…it's possible that there might have to be some revengeance [sic] taken.” Brandenburg v. Ohio, 395 U.S. 444, 446 (U.S. 1969). He went on to vow that the organization will march on Congress and several cities in Florida and Mississippi. Brandenburg, 395 U.S. 444 at 446. Because of his speech, he was convicted of radical syndicalism under an Ohio statute. Id. The Court held that the state cannot proscribe mere “advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action”. Id. at 447. Finding that this statute proscribed mere advocacy of the use of force or of law violation, the Court overturned the conviction.

            While jurors do swear to decide the case "upon the law and the evidence", it remains unsettled whether jury nullification is a violation of the federal juror’s oath. Jury Handbook. If jury nullification is illegal this renders Heicklen an advocate of lawlessness. Even so, the statue in question, 18 USC 1504, makes no reference to imminency nor likelihood of the production of such action. The government makes no claim that Heicklen bases his appearances on the court’s docket and alleges no targeting of jurors when he avails literature. Moreover, the government makes no claim he advocates jurors decide a particular way in any specific case. Here, Heicklen merely provided literature for passersby, he did not attempt to produce imminent lawless action, nor is he likely to produce such an action. As such, Heicklen is directing his advocacy at the general attitude of possible law violation, as he aims at no particular issue or case.

            Under the test written in Brandenburg, it is clear that Heicklen engaged in mere advocacy of a political and legal issue. As this statute is presently construed to proscribe such action, it state no requirement that such advocacy produce imminent lawlessness nor have any likelihood to incite such action. As such, 18 USC 1504 is a clear prime facie violation of the First Amendment to the Constitution at interpreted in Brandenburg.

The statue is constitutionally overbroad.

            In First Amendment litigation, a statute must be narrowly tailored so as to not criminalize constitutionally protected speech. Specifically, a statute is overbroad if “a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep.” Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449 (2008). To discern whether a statute is overbroad, then, a court must determine the range of what is proscribed under it. United States v. Williams, 553 U.S. 285, 293, (2008).

            In U.S. v. Stevens, the Supreme Court was presented with a challenge to 18 USC 48, which criminalized the commercial creation, sale or possession of depictions of animal cruelty. United States v. Stevens, 130 S. Ct. 1577 (U.S. 2010). In that case, Stevens argued that the statute covered a depictions a large amount of legal activity, and as such was overbroad. Stevens, 130 S. Ct. 1577 at 1587. The Court agreed.

            In Julian Heicklen’s case, 18 USC 1504 reads, in part, “Whoever attempts to influence the action or decision of any… juror… upon any issue or matter pending before such juror… by writing or sending to him any written communication, in relation to such issue or matter, shall be fined under this title or imprisoned...” Here, holding a sign and offering pamphlets is considered ‘sending written communication’. Moreover, the prosecutor’s office has stated, “advocacy of jury nullification, directed as it is to jurors, would be both criminal and without Constitutional protections no matter where it occurred.” Under the wording of 18 USC 1504 and the government’s construction of it, if any person hands out literature on any matter before any juror who may be passing by, that person is subject to criminal penalty. The statute does not require that the communication be knowingly or reasonably calculated to be received by a juror, nor does it require likelihood that such communication could influence a juror. Moreover, the government’s argument that Heicklen’s actions would be criminal “no matter where it occurred” is deeply troubling. This argument necessarily holds that no place in the United State is safe to publish or write about jury nullification, as it may be possible that a current juror could read it, and thus be influenced on a matter pertaining to his or her duty. An outright ban on the publication and distribution of points of view on important political and judicial matters is exactly the type  of government action the Constitutional Framers sought to prohibit when adding the First Amendment to the Constitution.

            As 18 USC 1504—under the government’s interpretation—criminalizes any written communication about jury nullification which may end up in the hands of a potential juror, it is clear it proscribes constitutionally protected speech. This is irrespective of the intent, reasonable expectations, or location of the writer. This statute and the conviction of Julian Heicklen under it are unconstitutional.

Conclusion

            The Founding Generation of the United States found itself in possession of the political unpopular viewpoint in favor of independence of the colonies from Britain. That is the context in which the First Amendment was born—a desire for freedom of political speech and expression. Indeed, in the marketplace of ideas, the ability to freely express one’s self is the first step toward discovering political truth. Indeed the Supreme Court has held that political expression holds a preferred position in First Amendment litigation due to this foundational American belief. Murdock v. Pennsylvania, 319 U.S. 105 (1943).

            Above it is argued that the 18 USC 1504, by proscribing mere advocacy, is a plain violation of the First Amendment and long-established precedent. Moreover, the government’s interpretation of the statute covers an overly broad range of constitutionally protected speech. Lastly, expression like Julian Heicklen’s is so constitutionally important that precedent has limited all three branches of government on proscribing it.

            In the final analysis, the prosecutor here is targeting Heicklen merely because the government disagrees with Heicklen’s position on the controversial issue of jury nullification. The government feels threatened by the idea itself, and as such wished to use Heicklen as an example. It is clear that such viewpoint discrimination is patently unconstitutional. R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). As such, there are no grounds upon which Julian Heicklen’s conviction could be sustained. Both his arrest and 18 USC 1504, as interpreted, are unconstitutional.