Yeterday a federal judge ruled that distributing pamphlets about jury nullification—even in front of a courthouse—is not jury tampering. U.S. District Judge Kimba Wood dismissed a 2010 indictment against Julian P. Heicklen, a retired chemistry professor who was accused of violating Title 18, Section 1504, of the U.S. Code, which authorizes a jail sentence of up to six months for anyone who "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." U.S. Attorney Preet Bharara claimed Heicklen committed that crime by standing on the plaza near the federal courthouse in Manhattan and handing out literature about the venerable legal tradition that jurors have the authority to judge the law as well as the facts of a case and therefore may vote to acquit a defendant who is guilty of doing something (handing out pamphlets, say) that should not be a crime. Wood noted that the statute cited by Bharara proscribes written communication aimed at influencing a specific juror's vote in a particular case. By contrast, Heicklen passed out his literature to pedestrians generally, albeit with the hope that some of them might turn out to be jurors. Because the charge was so clearly inappropriate, Wood did not address the First Amendment implications of trying to imprison someone for controversial speech. "I don’t think sensible prosecutors should have even brought this case," NYU law professor Rachel Barkow told The New York Times.
Nor would sensible prosecutors have claimed that "advocacy of jury nullification, directed as it is to jurors, would be both criminal and without constitutional protections no matter where it occurred." Yet that is what Bharara's underlings asserted in a brief last year. As George Washington University law professor Paul Butler pointed out in a New York Times op-ed piece, that position makes a criminal out of him and anyone else who dares to write favorably about jury nullification. So even though Wood dismissed the indictment against Heicklen on statutory rather than constitutional grounds, her repudiation of Bharara's astonishingly censorious position certainly counts as a victory for freedom of speech.