In the Southern District of New York, there is a battle brewing between the first amendment and the sixth amendment. Federal prosecutors have charged Julian P. Heicklen with jury tampering. How did the 79-year-old retired professor tamper with the jury? He stood outside the federal courthouse and handed out information about jury nullification.
Jury nullification is defined as juries voting based upon their moral compass rather than the facts of the case or the law. If jurors believe punishments are too harsh or the law criminalizes acceptable behavior, they refuse to convict thus negating or nullifying the law. Jury nullification is about as old as juries, dating back to the 1400’s. Jury nullification forced reforms of the British penal code in the 1800’s; by refusing to apply the death penalty for less serious offenses about 100 crimes were delisted as punishable by death. Julian Heicklen is trying to create the same type of grassroots movement to alter the laws criminalizing gambling and drug possession/use—crimes that are often categorized as victimless crimes.
Based upon a conversation with an uncover agent, federal prosecutors allege that Heicklen was specifically targeting jurors rather than exercising his right to free speech; attempting to sway jurors to make a decision unrelated to the facts of the case is one of the definitions of jury tampering. However, standing outside of a courthouse, behind a sign reading “Juror Information”, handing out informational pamphlets about jury nullification does not guarantee that the intended audience will be reached. Anyone could receive a pamphlet. So, is this interference with our criminal justice system, free speech, or both?
Perhaps the real question is by what standard will the application of the jury tampering statute to this instance of speech be judged? There are several possibilities. First, is a courthouse an appropriate venue for speech? Is it a public forum? Lawyers often discuss cases with reporters in front of courthouses. Heinklen’s position was not blocking proper operation of the courthouse (Adderly v. FL). Courthouses are generally open to the public, and in Cohen v. CA, the Court allowed Cohen’s political jacket inside the courthouse. It seems the Court has recognized the courthouse as a viable platform for speech. But Cohen’s jacket was not directly influencing or trying to influence the outcome of any criminal or civil proceeding.
Second, does the subject matter of the speech change the ability of state to restrict the speech? Normally, a law targeting speech would be subject to strict scrutiny. Here the government’s interest is protecting the criminal justice system—likely a compelling interest in the eyes of the justices. Writing for Law.com, two New York lawyers suggest it is and offer us a third standard. They invoke the clear and present danger test for justifying restricting Heicklen’s speech. To make their point, they present a hypothetical situation from the civil side of the system. What if you are defending a corporate entity in a liability suit where ‘liability is very thin.’ What would happen if protestors outside the courthouse during the lunch break hand out information to deliberating jurors (among others) that suggest voting for the ‘little guy’ regardless of the facts presented during trial? Trying to sway jurors based upon emotions or sense of moral outrage, suggest the lawyers, prohibits due process and creates a clear and present danger.
Connecticut Fathers for Justice would disagree that such speech interferes with due process. This group staged a protest in front of the Danbury Courthouse trying to raise awareness of the bias in custody battles against fathers; the prejudice against fathers in custody suits, according to the group, is a violation of due process. Using their right of free speech, these men are protesting what they perceive as systemic unfairness. Is this also tampering with the system? Are they targeting judges and trying to influence the decisions in custody battles, as well as raise awareness? Yes. Should this speech be prosecuted as well?
Fourth, even if we grant that the speech may impact due process does it rise to the level of a clear and present danger? In Schenck, the leaflets were mailed directly to men heading off to military service after being drafted. Here, Heicklen provides information to those that entering a courthouse. His aim is similar to Schenck’s—disrupt the normal operations of the government. However, no one must take his pamphlet or speak with him. So is his action more akin to Cohen’s jacket where you can simply ignore the message or Schenck’s targeting of draftees?
The prosecution of Heicklen presents an interesting mix of criminal due process and free speech that is not easy to disentangle. Was it a clear and present danger or even clear and probable danger? Or was it simply that free speech informing citizens of their discretion as jurors that was detrimental to the government’s goals?
 In the blog piece, some of the material Heicklen passed out is quoted. “The judge will instruct the jury that it must uphold the law as he gives it. He will be lying. The jury must judge the law as well as the facts. Juries were instituted to protect citizens from the tyranny of the government. It is not the duty of the jury to uphold the law. It is the jury’s duty to see that justice is done.” Another publication contained this question and answer: “Once on a jury, must I use the law as given by the judge, even if I think it’s a bad law, or wrongly applied?The answer is ‘No. You are free to vote on the verdict according to your conscience.’”