The People of the State of Colorado, v. Eric Patrick Brandt, Colorado

December 3, 2018 • Legal Briefs
By Clark Neily, Jay Schweikert, Autumn Billings, & Joseph G.S. Greenlee

It is difficult to overstate the extent to which the government’s attempt to prosecute Eric Brandt and Mark Iannicelli strikes at the core of the First Amendment. The two men were arrested and convicted for engaging in classic political advocacy (peacefully distributing pamphlets) in the quintessential public forum (the sidewalk in front of a courthouse) on a matter of public concern more ancient than Magna Carta, and at the heart of Anglo‐​American law (the rights, duties, and independence of citizen jurors). One can well imagine why an English monarch would wish to suppress efforts to inform potential jurors of their power to resist tyranny by refusing to convict fellow citizens who had incurred the sovereign’s enmity; what is—or should be—more surprising is American prosecutors claiming such authority under the Constitution.

“Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.” Reed v. Town of Gilbert, 135 S. Ct. 2218, 2227 (2015). That is exactly the case here. Had Brandt and Iannicelli been handing out brochures for their church or advertisements for a car, they could not have been guilty of violating the statute under which they were charged, C.R.S. § 18–8-609(1); the violation necessarily turned on the content of the pamphlets they were distributing. The statute—whether or not it is limited to actual jurors chosen to serve on a particular case—is therefore a content‐​based speech regulation, and its application to defendants like Brandt and Iannicelli must receive strict scrutiny. Reed, 135 S. Ct. at 2227.

The state’s brief sidesteps these First Amendment concerns by arguing that § 18–8-609(1) “does not regulate the content of speech so much as the time, place, and manner of that speech.” Br. at 22. This position is simply impossible to reconcile with the Supreme Court’s decision in Reed v. Town of Gilbert, given that the statute at issue prohibits attempts to “directly or indirectly … communicate with a juror” with respect to a specific subject matter (juror decision‐​making), and that the charges against Brandt and Iannicelli necessarily depended on the fact that the pamphlets they were distributing concerned this exact subject matter.

To be sure, the government has a compelling interest in protecting the integrity of the jury decision‐​making process, and it may prohibit acts that constitute the traditional crime of jury tampering. But the state’s interpretation of § 18–8-609(1) sweeps far beyond this legitimate purpose and implicates massive volumes of speech entitled to the highest degree of First Amendment protection. Overbreadth aside, the statute cannot constitutionally be applied to the speech of the defendants, as Colorado has no legitimate interest—compelling or otherwise—in preventing Brandt and Iannicelli from discussing the history of jury independence with any member of the public, whether or not they have been or may be called as a juror in any action.