Jury Nullification and Free Speech: The right to Educate Potential Jurors and the Public About Jury Nullification

     In 1794 the Supreme Court of The United States in Georgia v. Brailsford ruled amongst other things that juries are allowed to rule contrary to the law, i.e. have a right to jury nullification.  A century later in 1895 the Supreme Court in Sparf v. U.S. ruled 5 to 4 that while jurors had the right to nullify they do not have to be told about that right by judges.  Fully consistent with those two rulings, 18USC § 1504 (quoted below in its entirety) provides that:

          “Whoever 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, shall be fined under this 

          title or imprisoned not more than six months, or both.

          Nothing in this section shall be construed to prohibit the communication of a request to 

          appear before the grand jury.”

      This federal law criminalizes contacting members of federal juries, in writing, as a part of an attempt to influence their decision in the matter they are deciding.  Ironically, the second sentence was added later to make sure that officials sending out grand jury summonses would not themselves technically be breaking the law.
     The law itself came up two years ago in the Southern District of New York case United States v. Heicklen (also available here as html text).  In that case, Julian P. Heicklen, an octogenarian retired chemistry professor and jury nullification proponent who likes to spend his retirement handing out information about jury nullification to people on the street outside the federal courthouse in Manhattan, was indicted by federal prosecutors and charged with violating the statute.
     The district court heard the case and ruled that since Heicklen was merely distributing literature about nullification he was plainly not violating the statute since none of his literature was targeted just at jurors or written about any specific case.  That was fully consistent with Heicklen’s assertion that he distributed literature on the general topic of jury nullification and that he did not deliberately target jurors or potential jurors (who in any case on the street are indistinguishable from anyone else who might be walking by or into a courthouse).  Rather, he simply hoped that some of the people he gave his materials to might be or become jurors and at the time of their service be a little more enlightened about the topic of jury nullification.
     In light of the law and the three rulings discussed, federal juries have a right to jury nullification, judges do not have to (but probably could) tell them about that right, and that members of the public can educate jurors (or anyone else) anywhere (but especially outside of a federal courthouse) about that right as a general topic just as long as they do not, in writing, try to influence jurors siting on a specific case.
     Any academic discussion about jury nullification aside, this author finds it most remarkable (in light of all the other activities one can encounter outside a federal courthouse) that we don’t see nullification proponents like Mr. Heicklen outside other federal courthouses on a regular basis.