Yesterday the Ninth Circuit handed down an interesting decision concerning the application of a state law prohibiting jury tampering to a member of the Fully Informed Jury Association. Turney v. Pugh, No. 03-35165 (9th Cir. Mar. 15, 2005) (Fletcher, J.).
The FIJA believes that juries have both the power and the right to nullify the law as it applies to the facts of a case. Frank Turney, an FIJA activist, went to courthouses and handed out information on jury nullification. Turney was convicted under a state law that, as interpreted by the state’s highest court, prohibited a person from “knowingly communicating with a juror, directly or indirectly, with the intent to influence the outcome of a specific case.”
He challenged the law under the overbreadth doctrine of the First Amendment. A unanimous three-judge panel rejected his defense.
Citing several Supreme Court cases concerning speech about ongoing judicial proceedings, the panel said that Bradenburg’s clear and present danger test should would ordinarily apply. Id. at *9 (“[A]s a general rule, speech concerning judicial proceedings may be restrictions on if it is directed to inciting or producing a threat to the administration of justice that is both imminent and likely to materialize.”) (internal quotation marks omitted). But because speech about a pending trial could potentially prejudice the defendant’s right to a fair trial, or upset the public’s interest in impartial justice, “the First Amendment ... does not shield a ... communications to jurors made outside the auspices of the official proceeding and aimed at improperly influencing the outcome of a particular case.” Id. at *11. In other words, speech made with the intent to influence the outcome of a particular trial “is speech that is not protected by the First Amendment.” Id. Therefore, the law prohibiting Turney's conduct - as limited by the state's highest court - reached only unprotected speech, and so the conviction was proper.
I don’t read Turney as a bold case –- It does not hold that a leafletter may not hand out FIJA material. Rather, the panel upheld Turney’s the law because its “scienter requirement would prevent application of the statute to mass communications ... because the speaker would have to know that she or she was communicating with a juror[ ].” Id. at *15 (emphasis in original).
Turney was also analyzed under the AEDPA. Jury nullification activists would be prudent to seek declaratory and injunctive relief rather than facially attack similar state laws after being prosecuted.
UPDATE: Here's another interesting decision on jury nullfication and free speech rights. Braun v. Baldwin (applying time, place, and manner rationale held there is no First Amendment right to advocate jury nullification inside a courthouse). Last year Will Baude wondered aloud: "Under Brandenberg, advocacy is permissible so long
as it is not likely to incite imminent lawless action. Jury
nullification is somewhat lawless, I will grant, but is it really
imminent? How far down the block must I move?" Mr. Baude, have you further considered the issue?
Anyone else have comments?
