Jury-nullification case echoes First Amendment origins

Monday, April 23, 2012

The verdict is in: Julian Heicklen did not illegally interfere with the judicial process when he handed out pamphlets in front of federal courthouses urging jurors to reach decisions based on their consciences rather than the letter of the law.

In New York City last week, U.S. District Judge Kimba Wood found that Heicklen’s pamphlets were protected by the First Amendment and did not amount to jury-tampering.

Heicklen was advocating jury nullification, a process by which a jury may find that a law was violated, but nonetheless decides to return a verdict of not guilty. This can happen when the jury finds a law to be unfair or a bad idea, and in effect nullifies the legislation by refusing to convict. Judges wouldn’t approve of that practice, but juries have final say on guilt or innocence. In his pamphlets, Heicklen was making a political argument but not trying to influence the outcome of specific cases, Wood found.

Beyond being a victory for free speech, the decision also echoes a case in Colonial America 277 years ago that set the stage for the First Amendment. In 1735, John Peter Zenger was charged in New York with seditious libel for publishing insulting articles criticizing Colonial Gov. William Cosby in the pages of the New York Weekly Journal.

Under the law at the time, Zenger could be punished for publishing the unflattering material, even if it was true. The theory was that truthful publication caused even greater damage because it was credible.

At Zenger’s trial, a lawyer named Andrew Hamilton asked jurors to ignore the judge’s instructions concerning  the law and set Zenger free. The jury did exactly that and established a foundation for the principle that truthful information cannot be punished as libel.

That principle was at the core of the First Amendment guarantee of freedom of the press, ratified in 1791. Clearly, jury-nullification advocate Julian Heicklen is in good company.

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