For the Feds, Speech is Speech. Unless you’re advocating Jury Nullification

Retired chemistry professor Julian Heicklen is facing imprisonment for advocating jury nullification to passersby, following an indictment by federal prosecutors last year, according to the New York Times.  He stood on a plaza outside the United States Courthouse in Manhattan and handed out brochures on the subject.

According to prosecutors, Heicklen’s “advocacy of jury nullification, directed as it is to jurors, would be both criminal and without Constitutional protections no matter where it occurred…. His speech is not protected by the First Amendment…. No legal system could long survive if it gave every individual the option of disregarding with impunity any law which by his personal standard was judged morally untenable.”

Meanwhile, a representative of the New York Civil Liberties Union has shot back: “The government is dangerously wrong in claiming it can criminalize sidewalk advocacy supporting jury nullification. Other than the extremely limited situations in which someone seeks to influence a known juror in a case, jury nullification advocacy is squarely protected by the First Amendment.”

Prosecutor Rebecca Mermelstein even favors denying Heicklen the jury trial he has requested.

Meanwhile, the terrible and unthinkable legal doctrine of jury nullification — so very dangerous to a free society, say federal prosecutors — was in fact the doctrine held by the Founding Fathers themselves. (I am hereby giving away the answer to one of the 33 Questions About American History You’re Not Supposed to Ask.)

(Thanks to George Viaud.)