Speech Related to the Politics of Juries Certainly Punishable by Law, New York Prosecutor Explains


The New York Times reports on the prosecutor's brief in the long-simmering prosecution of Julian Heicklen for handing out pamphlets advocating the jury's ye olde ancient Anglo-Saxon power and responsibility to judge the law as well as the facts (colloquially known as the power of jury nullification):

 prosecutors are offering their first detailed explanation for why they charged Mr. Heicklen, arguing in a brief that his "advocacy of jury nullification, directed as it is to jurors, would be both criminal and without Constitutional protections no matter where it occurred."

"His speech is not protected by the First Amendment," prosecutors wrote.

"No legal system could long survive," they added, "if it gave every individual the option of disregarding with impunity any law which by his personal standard was judged morally untenable."

The filing in the unusual case comes as Judge Kimba M. Wood of Federal District Court considers the defense's request to dismiss the case. She has scheduled oral arguments on the issue for next month.

That may be so. And yea indeed, no mighty republic could survive if we all chose to stop growing up, become Lost Boys, and drift off to Never-Never Land. And yet works made of words that paint that as a possibly desirable alternative are, last time I checked, legal. For a more political take on the same point, no legal system could long survive if everyone engaged in any sort of civil disobedience, and yet strangely advocating specific forms of civil disobedience through words or pamphlets is not generally considered illegal in a nation with the First Amendment.

In short, the prosector's argument is very, very dangerous nonsense, and may it fail in court, and this whole indictment and prosecution is a blatant and awful case of legal punishment for political speech. (Which, not to put too fine a point on it, is a bad thing.)

I've been blogging about Mr. Heicklen's case many steps of the way, from his February arrest to the Times' first coverage of the case to Heicklen's defying a stupid court order about jury nullification pamphleteering in March to reporting in the June 2011 issue of Reason on a summation of his fight so far.

For the latest on Heicklen's legal troubles related to speaking the truth about jury's powers, see the "Tyranny Fighters" site.

Lysander Spooner explains it all to you on the traditional and necessary and just powers of juries, the final check and balance on tyranny.