Contributor, The Volokh Conspiracy

Keith Eric Wood is being prosecuted for standing outside a Michigan courthouse and handing out a leaflet that discusses jury nullification. According to Michigan authorities, his leafletting (1) constitutes felony “obstruction of justice,” by “knowingly and intentionally giving the members of a . . . jury pool a pamphlet that encouraged the jurors to violate their oaths and directly contradicted the instructions the jurors would be given thereby tainting the entire jury panel,” and (2) “willfully attempt to influence the decision of a juror in a case [a misdemeanor] by argument or persuasion that was not a part of the proceedings in open court in the trial of the case” (even though the leaflet wasn’t referring to a particular case).

It seems to me that such speech is constitutionally protected, and that the prosecution therefore violates the First Amendment. One can debate whether jury nullification is good or bad for the legal system, but it’s clear that it’s not a crime for jurors to refuse to convict even when the jury instructions seem to call for a guilty verdict. So Wood is encouraging a jury to engage in legal — even if, in the view of some, harmful — conduct.

Under Brandenburg v. Ohio (1969), even advocacy of criminal conduct is constitutionally protected unless it’s intended to and likely to cause imminent criminal conduct by the audience (as opposed to criminal conduct at some unspecified time in the future, see Hess v. Indiana (1973)). It follows that advocacy of noncriminal conduct would be at least as protected. And here Wood (and others like him) are simply encouraging noncriminal conduct at some unspecified time in the future — when there’s plenty of opportunity for counterspeech by the judge (a much more authoritative figure than Wood).

To be sure, the court has often asserted that even speech that falls outside the First Amendment exceptions — such as the Brandenburg incitement exception — can be restricted by laws that are “narrowly tailored” to a “compelling government interest” (the so-called strict scrutiny test, which I discuss in much more detail in my Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny article). But whatever that test might mean, it seems to me that it can’t justify restrictions on speech that are motivated by the fear that the speech will persuade people to do harmful things. That is the area that Brandenburg was developed to cover, and allowing the test to uphold such speech restrictions would eviscerate Brandenburg (as I argue in Part II.B of the Transcending Strict Scrutiny article).

Consider a hypothetical: Say that Wood’s brother stands on a street corner and hands out leaflets to passersby praising the propriety of jihad, of bombing abortion clinics or of Communist revolution. That speech is protected by the First Amendment, despite the possibility that it might persuade some recipients to commit very serious crimes. And if the government argues that restricting such speech is narrowly tailored to a compelling government interest in preventing murder or other crimes, the courts will reject that, citing Brandenburg.

Now the other brother, Wood himself, stands a block over, in front of a courthouse, handing out to prospective jurors leaflets praising jury nullification. The government argues that restricting such speech is narrowly tailored to an interest in having jurors decide based on the instructions that the court gives them — an interest that, even if seen as very important, is less important than the interest in preventing murder. How can it be that Wood’s leaflets urging non-criminal but, in the view of some, socially harmful behavior (even such behavior by jurors) are constitutionally unprotected, while his hypothetical brother’s leaflets urging criminal, indeed murderous, behavior are constitutionally protected?

Note that this case doesn’t involve restrictions limited to speech on courthouse grounds, such as in a courtroom or even the courthouse foyer. The law involved in this case isn’t limited to speech on such nonpublic forum government property. And Wood himself was on a sidewalk. City sidewalks, including outside a courthouse, are a traditional public forum in which First Amendment rights are at their strongest.

Nor does the case involve restrictions on speech by lawyers, or even by parties in the case. The law is being applied to restrict speech by a private citizen, and speech that is said either to private citizens or, if you prefer, temporary government officials. This is speech within the zone of maximum protection. And, as I argued above, given Brandenburg such speech can’t be criminally punished, even if one is worried that it will persuade people to behave in harmful — but, I stress again, not even criminal — ways.

The one argument that I can see the government making is that Cox v. Louisiana (1965) upheld a state statute banning “picket[ing] or parad[ing]” near a courthouse “with the intent of interfering with, obstructing, or impeding the administration of justice, or with the intent of influencing any judge, juror, witness, or court officer.”

But the court’s rationale in Cox had to do with protecting the justice system from “influence or domination by either a hostile or friendly mob,” since “mob law is the very antithesis of due process.” This rationale wouldn’t apply to a lone leafletter, who would potentially influence proceedings only through persuasion, rather than intimidation. And even if the persuasion here is seen as potentially dangerous (because it seeks to persuade jurors to do something that the court system thinks they shouldn’t do), it is no more dangerous than the persuasion to commit crime, which Brandenburg protects.

I must admit that lower courts haven’t seen things this way. See Turney v. State (Alaska 1997), Turney v. Pugh (9th Cir. 2005) and Braun v. Baldwin (7th Cir. 2003) (though, as the partial concurrence in Braun pointed out, that case would have been better decided simply on the grounds that the courthouse is a nonpublic forum, given that Braun was distributing leaflets inside the courthouse); State v. Springer-Ertl (S.D. 2000); and United States v. Ogle (10th Cir. 1980).

But even some of those courts — see, e.g., Turney v. Pugh — have limited their rulings to speech “aimed at improperly influencing the outcome of a particular case.” United States v. Heicklen (S.D.N.Y. 2012), indeed rejected an indictment because “there [was] no allegation that Heicklen distributed the pamphlets in relation to a specific case.” And according to (Barton Deiters), Wood’s lawyer, David Kallman, “said his client had no case at the court, knew of no cases and no jury had been seated at the time he was handing out the fliers.”

Thanks to Michael Mol for the pointer.