Criminal Justice

Judge Orders Prior Restraint of Political Speech


A judge in Florida has moved beyond merely forbidding the act of jury nullification in his courtroom. He's also banning advocates from letting anyone know about it.

A court order signed this week prohibits the distribution of pamphlets or leaflets meant to influence jurors outside the Orange and Osceola courthouses.

The administrative order, signed by Chief Judge Belvin Perry on Monday, has sparked a fresh free-speech debate that could lead to legal challenges, questioning whether the order amounts to a "prior restraint" or a form of censorship.

The issue stems from representatives of the national nonprofit organization Fully Informed Jury Association distributing what they call jury "education" information outside the Orange County Courthouse.

The documents, aimed at sitting or potential jurors, advised that jury members may vote their conscience. The pamphlets also indicate members cannot be forced to obey a "juror's oath" and that individuals have the right to "hang" a jury if they do not agree with others on the panel…

That order says a "restriction upon expressive conduct and the dissemination of leaflets and other materials containing written information tending to influence summoned jurors as they enter the courthouse is necessary to serve the state's compelling interest in protecting the integrity of the jury system."

Perry's order notes that one judge in the Ninth Circuit covering Orange and Osceola determined that a jury panel had been "tampered with" after discovering members had the leaflets "containing information attempting to influence the jury."

Roger Roots, an attorney and member of FIJA's advisory board, said the nonprofit is actively seeking legal representation in Florida to see whether a challenge to Perry's order can or should be mounted.

"Chief Judge Perry's order is what is known as prior restraint — one of the most oppressive forms of censorship," Roots said in a statement sent to the Orlando Sentinel on Thursday. "The fact that the courthouse is an important public building where one would expect people to be free to advocate and speak about matters of the public interest makes Judge Perry's order especially suspect."

MORE: Looks like Brian Doherty beat me to this one by several days.

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  1. If there was a right to a fair trial interest being threatened here, that would be one thing. But this logic could be extended to ban any discussion of nullification anywhere. Better start burning some books!

    This won’t stand–prior restraints have to be for damned good reasons.

    1. Couldn’t the newspaper story reporting on the pamphlets influence potential jurors?

      Better send stormtroopers into the newsroom to oversee things.

    2. God help us all when this judge finds out about Mytwit and Faceyspace.

      1. It’s FaceTwit and BookSpacer, moran!

        1. I think you’re confusing those with Mybook and Twitspace.

          1. Don’t you mean MyFace and SpaceBook?

          2. Facebook / Twitter anagram: Backfire Wet Toot

            (Sounds like a personal problem.)

            1. Not if it happens in public.

            2. AOL 2.Ass

            3. Where did the “k” come from?

              1. Facebook / Twitter

  2. Ther are 3 ways to deal with unconstitutional laws and orders:


    You are free to pick more than 2.

    1. You left off the fourth way.

      1. Shut up, Ouspensky!

  3. …sounds great until it’s used to excuse murder or rape because the the jury thinks so little of the victim, i.e. the pre-civil rights era South. The jury didn’t think intimidating or assaulting negroes violated their values, so they acquitted. Of course, that doens’t happen anymore in this enlighted day and age.

    1. Ropes can be used to strangle people. We should ban all ropes.

      1. And icicles! They can take an eye out!

      2. People drown in water. We should ban water.

        1. Well, econuts have signed petitions to ban Dihydrogen monoxide.

      3. Don’t you mean “lynch”?

        1. Are you going to start whining about how you didn’t understand Eraserhead again?

          1. Fun trivia: A young Warty made his acting debut as Henry’s mutant baby. Or maybe it was an embalmed cow fetus. *shrug*

    2. Really, this isn’t about jury nullification. It’s about whether this is a valid prior restraint of speech. Don’t see how it could be.

    3. No, cops and prosecutors don’t ever actually let things get to the “jury” phase when one of them commits a crime against a second class citizen (ie, most everyone else), since an all cop jury would be hard for even a bageldicker to buy.

  4. “State’s compelling interest”–that all-purpose loophole written in invisible ink in the Bill of Rights.

    I begin to wonder why the drafters of the Constitution bothered giving themselves writer’s cramp creating the Bill of Rights. The government scarcely pretends to obey its restrictions.

    1. I could give myself about the state’s compelling interest.

    2. “State’s compelling interest”–that all-purpose loophole written in invisible ink in the Bill of Rights.

      I begin to wonder why the drafters of the Constitution bothered giving themselves writer’s cramp creating the Bill of Rights. The government scarcely pretends to obey its restrictions.

      A law infringing on a fundamental right is subject to strict scrutiny.

      Furthering a compelling government interest is just one prong. The other two is narrow tailoring and the least restrictive means.

  5. Interestingly, if someone was arrested for distributing this literature, the jury that was trying them would most likely be exposes to quite a bit of jury nullification literature in the trial itself (most likely leading to an acquittal or a hung jury).

    1. No jury trial for “contempt of court”. Just a “go directly to jail” card…

      1. Really? Aren’t you guarunteed a jury trial for a criminal case (which I assume this is)?

  6. Radley, to whom at Reason do I send my bills for anxiety and blood pressure medication that I need to take after reading your stories?

    The fact that most of my fellow lawyers would agree with this judge makes me feel even worse. And why are all these stories coming out of Florida lately?

    1. I brought this up with my dad unsuccessfully a long time ago. He 1) clearly did not like it being advocated 2) seemed to think it was deathly serious.

      He didn’t convince me of the later, I’d really like to hear a long argument on why the very same 12 citizens authorized to condemn a person can’t use their conscious to find a ruling outside of the normal constraints.

  7. “Perry’s order notes that one judge in the Ninth Circuit covering Orange and Osceola ”

    Damn, Ninth Circus gets far.

  8. A court order signed this week prohibits the distribution of pamphlets or leaflets meant to influence jurors outside the Orange and Osceola courthouses.

    Handing out jury nullification flyers and pamphlets outside a courthouse is a good way to get yourself arrested even without this judge’s order.

  9. Maybe they should just get a billboard with a map of the state of Pennsylvania on it, with the caption “Without jury nullification, this state wouldn’t exist”.

  10. Laws are to be applied and followed, not judged.

    Only lawyers who have been elected to political office are capable of judging laws.

    They are Authority.

    It is not your job to think you silly silly person.

    That is what Authority is for.

    All you are supposed to do is trust in your feelings and act accordingly.

    Run along.

    1. Also, all laws will now be available in Latin only…

    2. Learned men in robes interpret the Word of the State. Just shut your mouth, pay your tribute, and obey.

    3. Very Animal Farm of Judge Perry.

      All animals are equal, but some animals are more equal than others.

  11. questioning whether the order amounts to a “prior restraint” or a form of censorship.

    If this isn’t prior restraint, what would be?

    If there was a right to a fair trial interest being threatened here, that would be one thing.

    Since jury nullification can’t hurt the defense, I don’t think that argument can be made. As far as I know, only the defendant has a right to a fair trial, not the prosecution.

    1. Agreed. I was just recalling some First Amendment case where a free speech right did (arguably) impinge on a Sixth Amendment right. Maybe it was one of the cases involving the press in the courtroom? Can’t remember.

  12. WHEREAS, September 5, 2007, will mark the 337th anniversary of the day when the jury, in the trial of William Penn, refused to convict him of violating England’s Conventicle Acts, despite clear evidence that he acted illegally by preaching a Quaker sermon to his congregation.

    WHEREAS, by refusing to apply what they determined was an unjust law, the Penn jury not only served justice, but provided a basis for the U.S. Constitution’s First Amendment rights of freedom of speech, religion, and peaceable assembly.

    WHEREAS, September 5th, 2007, also commemorates the day when four of Penn’s jurors began nine weeks of incarceration for finding him not guilty. Their later release and exoneration established forever the English and American legal doctrine that it is the right and responsibility of the trial jury to decide on matters of law and fact.

    WHEREAS, the Sixth and Seventh Amendments are included in the Bill of Rights to preserve the right to trial by jury, which in turn conveys upon the jury the responsibility to defend, with its verdict, all other individual rights enumerated or implied by the U.S. Constitution, including its Amendments.

    NOW, THEREFORE, I, Sarah Palin, Governor of the State of Alaska, do hereby proclaim September 5, 2007, as:

    Jury Rights Day

    in Alaska, in recognition of the integral role the jury, as an institution, plays in our legal system.

    Dated: August 31, 2007

  13. And, another stupid joke handle is offed.

    1. I figured he was just your Mexican, non-union equivalent.

      1. Nah. He’s doing yardwork. No internet for him!

  14. Jury nullification is to civilians what unlawful orders are to the military…just because someone in power is telling you what to do doesn’t mean it’s right or that you must obey.
    You are a moral agent, and you cannot give that away.

  15. Y’all seem to be actually THINKING ’bout the subject. Gonna have to do something about that.

    1.5 Crime and Justice
    We assert the common-law right of juries to judge not only the facts but also the justice of the law.…..01_ZO.html
    It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumbable, that the court are the best judges of the law. But still both objects are lawfully, within your power of decision.

    1. second part is good. An argument (sort of) against nullification based on respect for the audience and a skeptical eye towards exercise of power. Much better than “RACIST! SOMALIA!”

      1. Supreme Court Chief Justice Jay delivered that to the jury in Georgia v. Brailsford. It is one foundation for jury nullification.

  17. We had a ridiculous “prior restraint” issue here in Pennsylvania a few years back regarding nursing home law. The laws as written permitted people to give away much of their estates to get down to the limit to qualify for state aid. For some reason, instead of modifying the law, they passed a law to prohibit attorneys from advising people that the law permitted them to do that.

    1. because they still wanted to take advantage for their own families.

    2. How is it illegal to inform people of what the LAW is? Seriously? And they say “ignorance of the law is no excuse,” but then we’re forbidden from learning about the law. Fantastic!

  18. I’m not sure how this order is binding on anyone who isn’t given proper notice of it.

    Orders typically aren’t binding on non-parties. If a judge does issue an order on a non-party, that party is usually looking him in the face, or the order has to be served.

    So, aside from the 1A issues, I think there is a due process issue here, as well.

    1. Who is going to enforce the order against nonparties?

  19. The funny thing is that the last time I went for jury duty the video they played in the waiting room repeatedly explained that nullification was right and proper and that we should employ it if we didn’t trust the law.

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