The feds are seeking to jail 78-year old Julian Heicklen for distributing pamphlets. Heicklen knows that jurors are supposed to be able to vote their conscience in criminal cases – so he distributes pamphlets on that subject near the federal courthouse. The feds are evidently worried about the contents of those pamphlets and assert that Heicklen’s conduct amounts to “jury tampering.” But if Heicklen just gave the pamphlets to anyone and everyone, as he claims, without attempting to sway the outcome of any particular case, his conduct is free speech, plain and simple. Heicklen should get a jury trial to fight the free speech violation – since our Constitution says, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury,” but prosecutors are going to invoke wrongheaded precedents that say this case can be tried before a judge, not a jury. Oh, and the police arrested another guy for simply videotaping Heicklen’s arrest. No pamphlets, no photography, no jury trial.
Cato co-published a book in defense of jury nullification in 1998. More here and here. (I am betting that books, blog posts, and law review articles are still legal should this post reach readers in New York City, but we’ll see about that.)