The New York Times reports:
Since 2009, Mr. Heicklen has stood … at courthouse entrances … and handed out pamphlets encouraging jurors to ignore the law if they disagree with it, and to render verdicts based on conscience.
That concept, called jury nullification, is highly controversial, and courts are hostile to it. But federal prosecutors have now taken the unusual step of having Mr. Heicklen indicted on a charge that his distributing of such pamphlets at the courthouse entrance violates the law against jury tampering.
It seems to me that such speech is constitutionally protected, and that the indictment therefore violates the First Amendment. One can debate whether jury nullification is good or bad for the legal system, but it’s clear that it’s not a crime for jurors to refuse to convict even when the jury instructions seem to call for a guilty verdict. So Heicklen is encouraging a jury to engage in legal — even if, in the view of some, harmful — conduct.
Under Brandenburg v. Ohio (1969), even advocacy of criminal conduct is constitutionally protected unless it’s intended to and likely to cause imminent criminal conduct by the audience (as opposed to criminal conduct at some unspecified time in the future, see Hess v. Indiana (1973)). It follows that advocacy of noncriminal conduct would be at least as protected. And here Heicklen (and others like him) are simply encouraging noncriminal conduct at some unspecified time in the future — when there’s plenty of opportunity for counterspeech by the judge (a much more authoritative figure than Heicklen).
To be sure, the Court has often asserted that even speech that falls outside the First Amendment exceptions — such as the Brandenburg incitement exception — can be restricted by laws that are “narrowly tailored” to a “compelling government interest” (the so-called strict scrutiny test, which I discuss in much more detail in my Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny article). But whatever that test might mean, it seems to me that it can’t justify restrictions on speech that are motivated by the fear that the speech will persuade people to do harmful things. That is the area that Brandenburg was developed to cover, and allowing the test to uphold such speech restrictions would eviscerate Brandenburg (as I argue in Part II.B of the Transcending Strict Scrutiny article).
If speech urging jurors to do supposedly bad things can be restricted, even outside the narrow Brandenburg boundaries, on the grounds that there’s a compelling interest in preventing jury nullification, so speech urging others to do worse things — such as commit crimes — could be restricted on the grounds that there’s a compelling interest in preventing those crimes (and note that there is a clearer opportunity for counterspeech as to pro-jury-nullification speech than there is for much pro-crime speech). And that would mean that Brandenburg would in practice become an illusory protection for speakers.
Note that this case does not involve restrictions limited to speech on courthouse grounds, such as in a courtroom or even the courthouse foyer. The law involved in this case isn’t limited to speech on such nonpublic forum government property (and as best I can tell from the story Heicklen was “outside the federal courthouse” on the city sidewalk; the law has long recognized city sidewalks as a traditional public forum in which First Amendment rights are at their strongest). Nor does the case involve restrictions on speech by lawyers, or even by parties in the case. The law is being applied to restrict speech by a private citizen, and speech that is said either to private citizens or, if you prefer, temporary government officials. This is speech within the zone of maximum protection; and, as I argued above, given Brandenburg such speech can’t be criminally punished, even if one is worried that it will persuade people to behave in harmful — but, I stress again, not even criminal — ways.
For a contrary view to mine, see Turney v. State (Alaska 1997), Turney v. Pugh (9th Cir. 2005), and Braun v. Baldwin (7th Cir. 2003) (though, as the partial concurrence in Braun pointed out, that case would have been better decided simply on the grounds that the courthouse is a nonpublic forum, given that Braun was distributing leaflets inside the courthouse). For cases dealing with the related question of speech aimed at influencing jurors in a particular trial — speech that I think should still be constitutionally protected, but which some might argue is distinguishable from speech that simply alerts jurors to their power to nullify — see State v. Springer-Ertl (S.D. 2000) and United States v. Ogle (10th Cir. 1980).
UPDATE: 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?