ACLU, Walters Challenge Courthouse Ban on Protected Speech

DAYTONA BEACH, Fla.—The ACLU of Florida today filed a legal challenge to an Administrative Order entered by Chief Judge Belvin Perry, Jr. of the Ninth Judicial Circuit, according to an ACLU press release. The Order bans protected speech on the Orange County and Osceola County Courthouse complexes. The ACLU's Petition for Writ of Certiorari asks the Fifth District Court of Appeal of Florida to review and overturn the Order.

The ACLU of Florida filed the Petition on behalf of the Fully Informed Jury Association ("FIJA") and one of its supporters and volunteers, James Cox, who, until Judge Perry's order, regularly spoke about jurors' rights and distributed leaflets and other related educational materials at the Orange County Courthouse complex. Mr. Cox's expressive conduct, and the FIJA materials he offered to members of the public focused primarily on jury nullification, sometimes referred to as "jury pardons."

Cooperating attorney Lawrence G. Walters, of Walters Law Group, and ACLU of Florida lawyers Randall Marshall and Maria Kayanan are asking the Fifth District Court of Appeal to vacate the January 31, 2011 order that bans the distribution of materials, oral protest, education, or counseling "intended to influence summoned jurors on any matter" which is, or may be pending before that individual as a juror. Penalties for violating the order include contempt of court citations, fines, confinement, or a combination.

"The government cannot place preemptive restrictions on free speech just because it doesn't like what is being said," said Howard Simon, Executive Director of the ACLU of Florida. "Educating the public and jurors is not obstructing justice."

In the Petition, the ACLU of Florida argues that the ban violates the United States and Florida Constitutions, by censoring political speech and expressive conduct based solely on its content, with no compelling state interest, and imposes a prior restraint on that protected speech.

"While a judge has the right to control his or her courtroom, that right must give way to the First Amendment right of a citizen to exercise free speech on the courthouse steps. The Order issued by Judge Perry crosses the constitutional line, and is so broad, it even prohibits lawyers from arguing their case to a jury," said Walters. "We must protect even unpopular and controversial speech to give First Amendment rights ample breathing space they need to survive."

FIJA is a nonpartisan public policy research and education organization established in Montana in 1989. FIJA describes its mission as educating Americans about their rights and responsibilities when serving as jurors, including their powers of "jury nullification" or "jury pardon" by which, according to FIJA, jurors are encouraged to "vote their conscience" on a case.

"Jury pardons are deeply rooted in American jurisprudence, even if they may be disfavored by judges," Simon said. "No matter how unpopular or controversial a specific idea is, educating potential jurors about legal theory is not a crime. It's protected speech."

FIJA supporters have refrained from speaking about their issues or distributing their literature at the courthouse since Judge Perry's order was issued. "The judge's order was clearly intended to single out constitutionally-protected expression which he disagreed with – namely, ours," stated FIJA Executive Director Iloilo Marguerite Jones. "As an organization dedicated to protecting the rights of American citizens, FIJA is pleased to have the ACLU defending our rights in the courtroom."


The Lowdown:

At issue is Administrative Order 2011-03, issued on January 31, 2011, titled "Administrative Order Governing Expressive Conduct Toward Summoned Jurors, Orange and Osceola Counties." In a preamble to the Order, Judge Perry claims that because of printed materials distributed outside the courthouse, "a Ninth Judicial Circuit Court judge recently found a jury panel had been tampered with ... as members of the jury were in possession of leaflets containing information attempting to influence the jury," and that "Such occurrences severely impact the court’s ability to conduct the efficient, prompt, and proper administration of justice."

The Order prohibits "[t]he dissemination of all leaflets and other materials to summoned jurors containing written or pictorial information tending to influence summoned jurors, as well as approaching a summoned juror for the purpose of displaying a sign to, or engaging in oral protest, education or counseling with information tending to influence summoned jurors on any matter, question, cause, or proceeding which may be pending, or which may by law be brought, before him or her as such juror."

There's just one problem: The materials being given out by FIJA regarding jury nullification are entirely in line with one of the oldest U.S. Supreme Court decisions in existence: Georgia v. Brailsford, decided on February 7, 1794.

"It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide," wrote the first Chief Justice John Jay. "But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumable, that the court are the best judges of law. But still both objects are lawfully, within your power of decision."

It's an awesome power that few citizens (let alone jurors) are aware of, and both the courts and law enforcement personnel have gone out of their way over the years to prevent the concept from being widely known. It is, however, what FIJA is all about—and the petition charges that the Order was created specifically to prevent FIJA from educating jurors as to their legal rights.

"The jury pardon ability that is enjoyed by jurors is well-enshrined in Supreme Court jurisprudence and Florida jurisprudence, and is an important tool in checking the government and preventing abuse of authority and enforcement of laws in the wrong circumstances," Walters explained.

Certainly, among those "abuses of authority" are the targeting of adult production companies and adult retailers for making and/or selling "obscene" materials.

"When you talk about obscenity laws and things like disorderly conduct and laws that are very subjective in nature as to what the crime actually is, the jury pardon is extremely important," Walters continued, "because even if a law might appear to facially apply, it is up to the citizenry and the jury of peers to decide whether the law should be used in the circumstance that the prosecutor decides to use it. Oftentimes, laws that I would call subjective such as disorderly conduct and obscenity are misused for improper purposes, and sometimes, they're used to violate people's First Amendment rights, they're used to create chilling effects of speech—'If you do this protest or if you show this movie, we're going to prosecute you'—so while some of these laws might facially apply to certain circumstances, jurors have the right to send a message to the prosecutors and to law enforcement that, 'We won't tolerate laws being used for an improper purpose.'"

The ACLU/Walters petition argues that Judge Perry's Order "departs from the essential requirements of law in that it is substantially overbroad, vague, imposes a prior restraint on protected expression, and conflicts with state law relating to jury tampering. Moreover, the Administrative Order is facially invalid as a content-based restriction on protected speech, which cannot survive strict scrutiny as it is not narrowly tailored, and fails to use the least restrictive means to accomplish the Chief Judge’s stated goals."

For instance, if anything in FIJA's handouts indeed misstated the law, the judge assigned to the case on trial has the ability to remedy such erroneous statements through his/her charge to the jury at the end of testimony.

"If jury pardons and jury nullification are so deeply rooted in our jurisprudence that they are deemed 'inherent' powers," the petition states, "then Petitioners’ speech that seeks only to inform the public and prospective jurors of their rights to exercise those powers cannot be banned simply because the judiciary in general, and the Chief Judge of the Ninth Circuit in particular, disapprove of that viewpoint... Although a judge has the inherent power to manage his or her courtroom, that power is tempered by the First Amendment." [Citations removed]

The petition further notes that the Order is so broad as to prohibit pro-marijuana-legalization protesters from demonstrating outside a courthouse where, for example, a drug possession trial was being held. Indeed, it would prevent advocates of any challenge to any existing law from making their views heard if any legal proceeding in the courthouse could be influenced by the opinions being voiced (or leafleted). Such "prior restraints on speech" as those embodied in Judge Perry's Order have been struck down time and again by the U.S. Supreme Court, perhaps most famously in the "Pentagon Papers" case in 1971, when the government tried to prevent The New York Times from publishing stolen classified government documents relating to the Vietnam War.

What's more, as Walters notes, there is no unanimity of opinion even among judges regarding the jury nullification issue.

"Some judges have no problem with jury pardons, and would support them being used in appropriate circumstances where law enforcement is overstepping its bounds, prosecuting the wrong person, or trying to achieve an improper purpose," Walters observed. "Judges are hamstrung, are confined by the dictates of the law, and judges can't dismiss cases just because it's an unjust prosecution; they're required to let the case go to the jury, and that's the jurors' job, to check the system, and if prosecutors are going overboard, or targeting certain groups or trying to achieve an improper purpose, then they have the right and, I would say, the moral obligation to [invoke] a jury pardon."