Jury Nullification and Free Speech

            Last year Julian Heicklen was arrested under 18 USC 1504, which has been interpreted by prosecutors as criminalizing advocacy for jury nullification. After discussing the facts and the relevant law, I offer two arguments. First, I use Brandenburg v. Ohio to argue that the statute violates the First Amendment facially. Second, I use United States v. Stevens to argue that the statute is overbroad as written and as interpreted.

Facts

Julian Heicklen is a retired chemistry professor at the great Penn State University. Over the past few years, Heicklen has stood outside the United States District Court for the Southern District of New York holding a sign which reads ‘Jury Info’. He would also hand out brochures to passers by advocating that jurors may acquit those charged with breaking laws which the individual juror finds immoral or wrong. It is important to note that neither Heicklen nor the government has alleged that Heicklen had any knowledge if any passersby were jurors not that he targeted jurors in his advocacy in any way. He simply offered information for anyone who approached him.

In the federal system, jurors take an oath to decide the case in front of them “upon the law and the evidence”, which has been interpreted as constraining jurors from acting on disagreement with the underlying law itself. As such, taking the morality of the law itself into account when judging an accused’s guilt or innocence, it is argued, would be a violation of the juror oath, and thus a violation of federal law. So jury nullification has been a controversial issue in United States jurisprudence because it is seen by some as advocating jurors to violate the law. The federal prosecutors charged Heicklen with violating 18 USC 1504, which reads:

Whoever attempts to influence the action or decision of any grand or petit juror of any court of the United States upon any issue or matter pending before such juror, or before the jury of which he is a member, or pertaining to his duties, by writing or sending to him any written communication, in relation to such issue or matter, shall be fined under this title or imprisoned not more than six months, or both.

Nothing in this section shall be construed to prohibit the communication of a request to appear before the grand jury.

In November 2010, under this premise, federal prosecutors charged Heicklen with attempting to influence jurors.

             It’s important to note, too, that the Supreme Court has regularly listed four reasons for protecting free speech. First, the truth will be found through a free marketplace of ideas. As such, like other markets, there should be a little regulation as necessary to let the truth rise. Second, democracy itself requires an informed citizenry. There must be free expression in order to discuss governance itself. Ultimately, this allows for the development of better citizens. This is exactly the role Heicklen was playing by advocating jury nullification. Third, free expression must be guaranteed because we as human being develop best as expressive individuals with liberty and autonomy. Lastly, the government itself is incapable of identifying truth, and as such has no place in the regulation of it. It is clear that Julian Heicklen’s actions are constitutional the proceeding jurisprudential reasons.

The statute, as applied, is a prima facie violation of the First Amendment.

                        The First Amendment to the Constitution states, in relevant part, “Congress shall make no law… abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble...”

A test of this language came in 1969 when the U.S. Supreme Court was presented with an appeal by a KKK member who spoke at the group’s march. He stated, inter alia, “…it's possible that there might have to be some revengeance [sic] taken.” Brandenburg v. Ohio, 395 U.S. 444, 446 (U.S. 1969). He went on to vow that the organization will march on Congress and several cities in Florida and Mississippi. Brandenburg, 395 U.S. 444 at 446. Because of his speech, he was convicted of radical syndicalism under an Ohio statute. Id. The Court held that the state cannot proscribe mere “advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action”. Id. at 447. Finding that this statute proscribed mere advocacy of the use of force or of law violation, the Court overturned the conviction.

            While jurors do swear to decide the case "upon the law and the evidence", it remains unsettled whether jury nullification is a violation of the federal juror’s oath. Jury Handbook. If jury nullification is illegal this renders Heicklen an advocate of lawlessness. Even so, the statue in question, 18 USC 1504, makes no reference to imminency nor likelihood of the production of such action. The government makes no claim that Heicklen bases his appearances on the court’s docket and alleges no targeting of jurors when he avails literature. Moreover, the government makes no claim he advocates jurors decide a particular way in any specific case. Here, Heicklen merely provided literature for passersby, he did not attempt to produce imminent lawless action, nor is he likely to produce such an action. As such, Heicklen is directing his advocacy at the general attitude of possible law violation, as he aims at no particular issue or case.

            Under the test written in Brandenburg, it is clear that Heicklen engaged in mere advocacy of a political and legal issue. As this statute is presently construed to proscribe such action, it state no requirement that such advocacy produce imminent lawlessness nor have any likelihood to incite such action. As such, 18 USC 1504 is a clear prime facie violation of the First Amendment to the Constitution at interpreted in Brandenburg.

The statue is constitutionally overbroad.

            In First Amendment litigation, a statute must be narrowly tailored so as to not criminalize constitutionally protected speech. Specifically, a statute is overbroad if “a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep.” Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449 (2008). To discern whether a statute is overbroad, then, a court must determine the range of what is proscribed under it. United States v. Williams, 553 U.S. 285, 293, (2008).

            In U.S. v. Stevens, the Supreme Court was presented with a challenge to 18 USC 48, which criminalized the commercial creation, sale or possession of depictions of animal cruelty. United States v. Stevens, 130 S. Ct. 1577 (U.S. 2010). In that case, Stevens argued that the statute covered a depictions a large amount of legal activity, and as such was overbroad. Stevens, 130 S. Ct. 1577 at 1587. The Court agreed.

            In Julian Heicklen’s case, 18 USC 1504 reads, in part, “Whoever attempts to influence the action or decision of any… juror… upon any issue or matter pending before such juror… by writing or sending to him any written communication, in relation to such issue or matter, shall be fined under this title or imprisoned...” Here, holding a sign and offering pamphlets is considered ‘sending written communication’. Moreover, the prosecutor’s office has stated, “advocacy of jury nullification, directed as it is to jurors, would be both criminal and without Constitutional protections no matter where it occurred.” Under the wording of 18 USC 1504 and the government’s construction of it, if any person hands out literature on any matter before any juror who may be passing by, that person is subject to criminal penalty. The statute does not require that the communication be knowingly or reasonably calculated to be received by a juror, nor does it require likelihood that such communication could influence a juror. Moreover, the government’s argument that Heicklen’s actions would be criminal “no matter where it occurred” is deeply troubling. This argument necessarily holds that no place in the United State is safe to publish or write about jury nullification, as it may be possible that a current juror could read it, and thus be influenced on a matter pertaining to his or her duty. An outright ban on the publication and distribution of points of view on important political and judicial matters is exactly the type  of government action the Constitutional Framers sought to prohibit when adding the First Amendment to the Constitution.

            As 18 USC 1504—under the government’s interpretation—criminalizes any written communication about jury nullification which may end up in the hands of a potential juror, it is clear it proscribes constitutionally protected speech. This is irrespective of the intent, reasonable expectations, or location of the writer. This statute and the conviction of Julian Heicklen under it are unconstitutional.

Conclusion

            The Founding Generation of the United States found itself in possession of the political unpopular viewpoint in favor of independence of the colonies from Britain. That is the context in which the First Amendment was born—a desire for freedom of political speech and expression. Indeed, in the marketplace of ideas, the ability to freely express one’s self is the first step toward discovering political truth. Indeed the Supreme Court has held that political expression holds a preferred position in First Amendment litigation due to this foundational American belief. Murdock v. Pennsylvania, 319 U.S. 105 (1943).

            Above it is argued that the 18 USC 1504, by proscribing mere advocacy, is a plain violation of the First Amendment and long-established precedent. Moreover, the government’s interpretation of the statute covers an overly broad range of constitutionally protected speech. Lastly, expression like Julian Heicklen’s is so constitutionally important that precedent has limited all three branches of government on proscribing it.

            In the final analysis, the prosecutor here is targeting Heicklen merely because the government disagrees with Heicklen’s position on the controversial issue of jury nullification. The government feels threatened by the idea itself, and as such wished to use Heicklen as an example. It is clear that such viewpoint discrimination is patently unconstitutional. R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). As such, there are no grounds upon which Julian Heicklen’s conviction could be sustained. Both his arrest and 18 USC 1504, as interpreted, are unconstitutional.

Rhetoric as Soft Power: Turkey and the Arab Spring

            The following post will discuss Turkey’s foreign policy regarding the recent ‘Arab Spring’ protests. Specifically to be discussed is Turkish Prime Minister Erdogan’s rhetoric toward the revolutions in Tunisia, Egypt and Libya, and the ongoing protests in Syria. It is argued that in the first two instances, Erdogan’s rhetoric and actions seem to be complimentary, whereas in the latter two the rhetoric and actions appear to contradict. The post begins with a background of Turkey’s recent role in the region, moves on to Turkey’s reactions to the Arab Spring revolts, and concludes with future challenges facing Turkey in this area.

Background

            Since the reforms of Ataturk in the 1920s and 1930s the Turkish military has secured a secular democracy which now supports a strong economy. These factors have led Turkey to obtain an important international status. That status is binary—it is both European and Middle Eastern; or perhaps neither European nor Middle Eastern. Its entire history has been straddling both regions—much like its geography. While Turkey is a member of NATO and has aspired to be in the European Union, the nation also has close ties with the Arab League and is the successor state to the Ottoman Empire. In the early 2000s talk of Turkey’s ascension to the European Union intensified, as did opposition to its application by key members, such as Germany. While the process is quite complicated, many observers view the EU and Turkey as having shifted away from each other as the decade wore on. Among other factors, the fall of the Euro, the relative strength of the Turkish economy, the strong public sentiment in Europe against Turkey joining the EU and an ideological shift in the ‘Islamist’ direction by the ruling elite of Turkey have possibly pushed Turkey’s attention eastward. That ruling elite is the Justice and Development Party (AKP), an Islamist-leaning party which experiences constant tension with the military, the defenders of the Turkish secular state. As the party has risen in domestic politics, it seems, Turkey has risen on the international stage. The party’s Prime Minister, Recep Tayyip Erdogan, has become one of the most popular Turkish leaders in modern times. The party came to power in 2002, and upon winning his third term on June 12 of this past year, Erdogan stated, “Sarajevo won today as much as Istanbul; Beirut won as much as Izmir; Damascus won as much as Ankara; Ramallah, Nablus, Jenin, the West Bank, Jerusalem won as much as Diyarbakir.” This has been seen as a conclusive signal that Turkey will focus its efforts on its neighbors and, more specifically, the Muslim world.

            In addition to wanting to be a good neighbor, Turkey has been positioning itself as a regional mediator. Ankara has found some results regarding the Kurds, Iraq, Armenia, and to some extent Russia. Moreover, over the past five years Turkey has actively attempted to broker peace agreements between both Israel and Palestine and Israel and Syria. The blame for that failure, however, has been pointed to Israel’s December 2008 armed operation in Gaza. Erdogan has been able to also get Serbia, Bosnia-Herzegovina, and Iran to the negotiating table—with similarly disappointing results. With these more difficult negotiations, Turkey has seen the limit to its diplomatic strength. While Turkey has been able to build relationships and get people to sit at the negotiating table, there has been an inability to translate that popularity into tangible results. These and other actions have shown that Turkey wishes to be seen as a fair mediator: Israel is a major military ally, and yet the AKP wants to be seen as sympathetic to the Palestinian cause. To further this view, in 2010 Turkish citizens embarked on a flotilla to bring aid to the Gaza, in violation of a shipping blockade of the strip imposed by Israel. Noting that Gaza boarders Egypt to the south, which is not subject to the blockade, Israel intercepted the flotilla—the boarding and interception of the flotilla resulted in the deaths of some of the Turkish passengers. "When Turkey's prime minister vowed that Israel would ‘absolutely be punished by all means’ after its raid on the Freedom Flotilla bound for Gaza… the country's standing soared in many corners of the Arab world.” Moreover, earlier this year the UN released a report finding that although the blockade was legal, Israel used excessive force when intercepting the flotilla. In response, Turkey called on Israel to apologize for such force. Israel refused, so Erdogan expelled Israel’s ambassador in Ankara and has threatened action of Israeli oil drilling near Cyprus. This distancing from Israel is important as a symbolic issue of a greater pan-Arab support message which would prove to be important in winning the hearts and minds of Arabs during the Arab Spring.

The Arab Spring

            The Arab Spring began in Tunisia in late December 2010 after the self-immolation of Mohamed Bouazizi. Protests in Tunisia spread and continued into early 2011 asking for economic and political reforms. These protests directly led to the fleeing of decades-long autocratic ruler Ben Ali. Soon after, the protests increased in popularity and spread to other countries such as Egypt, Bahrain, Syria, and Libya, and Yemen. Longtime autocratic ruler Hosni Mubarak in Egypt quickly fell; leaving the question of what types of government would arise from the ashes of revolution. Many pointed to Turkey as a model of Arab democracy: while the AKP held Islamic values, the governmental structure in Ankara reflected secular democracy.

Since coming to power in 2003 the AKP has argued for democratic values in the Arab context. “It was not an accident, for example, that both of the mainstream Islamic parties in Tunisia and Egypt -- the NAHDA and the Muslim Brotherhood -- announced that they would use the AKP as their example and run in elections, rather than striving for complete control.” Nonetheless, the Arab Spring took Turkey, like the rest of the world, by surprise. Many feel that Turkey was too slow to react to the events and ‘pick sides’. However, Erdogan was quick to recover. This is partially because the beginning of the Arab Spring was easy for the AKP: protesters in both Tunisia and Egypt were opposing secular dictators and showed strong support for both political Islam and democracy. Moreover, Erdogan had been sharpening his rhetoric toward Israel—increasing Turkey’s popularity among most Arab publics.

Hard power and soft power.

            In the Middle East the U.S. has generally employed hard power to support its foreign policy. Military intervention in Iraq, now Libya, and nearby Afghanistan have been the most visible examples. However, economic carrots toward Egypt, Israel, and Saudi Arabia and sticks toward Syria, Iraq and Iran have also been points of contention throughout the region over the past few decades. This use of hard power has cost the U.S. greatly in terms of public diplomacy. While President Obama came to office promising a shift in relations—from negotiations with Iran to his visit to Turkey and his famed ‘Cairo speech’—he has since fallen into the same pattern of U.S. foreign relations. Obama has increased sanctions on Iran and Syria as well as engaged militarily with Libya and Pakistan.

            Erdogan has seen this game played in the Middle East before and offers juxtaposition. “Turkey’s policy of penetrating new markets and initiating economic integration projects with neighbors, accompanied by the removal of visa requirements, added a liberal touch to Ankara’s recent activism." Indeed, Turkey has been advocating “an idealist vision of regional order”, while generally not resorting to the hard power carrots and sticks favored by the U.S. While Turkey certainly could not have predicted the Arab Spring, it has been invested in populist movements before Tunisians hit the streets. As Ibrahim Kalin, a policy adviser to Erdogan, has said, “We’ve been criticized for engaging many of these groups, whether it’s Hezbollah or Hamas or the Muslim Brotherhood - the so-called difficult actors in the Middle East… but now most of these groups with which we’ve developed some sort of engagement… are going to play an important role in their respective countries.”

While the U.S. and much of the rest of the world was focused on the autocratic leaders of the region, Turkey was able to also focus on an increasingly empowered group—the people themselves. Regarding the Arab Spring Kalin argues that because of this, "Turkey will be strengthened, not weakened, by a more democratic and prosperous Arab world.” Furthering Turkey’s public diplomacy rhetoric, in June Ersat Hurmuzlu, an adviser to Turkish President Gül, said, “Turkey is with the people, not the regimes.” However, many feel that while Turkey has engaged in public diplomacy rhetoric, its real foreign policy actions and concerns are no different. To them, there is an undeniable gap between Turkish rhetoric and the reality of regional politics. Nowhere is such a gap more apparent than in Turkish reactions to the protests in Libya and neighboring Syria.

Libya and Syria.

            While it seemed easy for Erdogan to ‘catch up’ to the Arab Spring and call for Ben Ali of Tunisia and Mubarak of Egypt to step down, it was much less so to make similar calls against Qaddafi of Libya. Libya, after all, is a major economic partner of Turkey, representing billions of dollars in Turkish investment. If Qaddafi was able to survive the revolt, relations would have surely evaporated. As such, Erdogan originally criticized the NATO intervention to oust Qaddafi, only to support it later in the campaign. After calling on Qaddafi to step down, Erdogan invited Mustafa Abdul-Jalil to Ankara, who was the leader of the Libyan opposition. The hesitation, however, contrasted greatly with Erdogan’s earlier claims that Turkey was acting on a morally consistent foreign policy. As a result, while Turkey carefully balanced ideals with classic self-interested policy implications, the nation looked stumbling and weary of the future in Libya.

            In 2009 Erdogan was reluctant to criticize Iran’s suppression of the Green Movement, as that nation has traditionally represented a strong ally for Turkey. For this same reason, Ankara hesitated to act in the face of mounting protests in Syria and an iron-fisted response from Assad. Over the past eight months, Assad’s regime has killed over 3,500 protestors. After waiting for the Western world to stand first—much like its response to Libya—Turkey has now begun to host Syrian opposition and thousands of refugees flowing over the border as a result of the conflict. Again, this hesitation has called into question Turkey’s supposed commitment to morally-led and autonomous foreign policy. Presently, Assad remains in power in Syria, as his relations with Ankara have progressively soured. Last month, Syrians attacked Turkey’s diplomatic mission to Syria for supporting an Arab League decision to suspend Syria in response to Assad’s brutal oppression of the uprising there. Last week, Turkey imposed historic heavy sanctions on Syria over these continued actions. With such tensions between Damascus and Ankara still rising, Turkey's stance toward Syria, with whom it shares 900km of border, is the real test of Erdogan's commitment to democracy. Moreover, as Turkey continues to distance itself from Assad, Iran will increasingly feel betrayed, a partner the AKP would rather not lose.

            Critics of Turkey’s reactions to Libya and Syria contend that the problem lies in Erdogan’s rhetoric. By using principled, idealistic rhetoric when the policy decisions are rather easy, Turkish foreign policy has shied away from the tools of hard power. Thus, when decisions of support for an ally arise or when such hard power seems necessary or appropriate, Erdogan has exposed himself to charges of hypocrisy. As such, with regard to Libya and Syria, Turkey’s soft power appears to have failed to create actual results. Indeed, “the Arab Spring seems to have been a learning experience for Ankara. It also showed that the United State's foreign policy conundrum—how to maintain the tricky balance between national interests and idealism—is not unique.” In order to avoid this issue in the future, the AKP should adopt more nuanced and detailed policy positions, such that Turkey can advocate for both soft power and hard power—termed ‘smart power’—consistently and practically.

Difficulties after the dust has settled

Turkey now sees itself as a ‘big brother’ to the new leaders in the Arab Spring countries. By Erdogan’s own choosing, “the extent to which Turkey succeeds in setting up a regional order will be crucial for its emergence as a central country in regional and, consequently, global politics."

 As the unrest of the Arab Spring settled, Erdogan embarked on his ‘Arab Spring Tour’. From September 12 through September 15 of this year he visited Egypt, Libya, and Tunisia. Erdogan has traveled to these countries speaking of an obligation to promote peace and freedom through its regional and global foreign policy. Erdogan feels that Turkey has been advocating its diplomatic model of “connectivity and autonomy over containment and alignment” for the Arab Spring nations. However, Turkey cannot rest. Egypt has been a regional power in the past, and the Egyptian people will likely prove to be defiant of the U.S., strongly opposed to Israel, and may form contacts with Tehran. Indeed, “Turkey might find that it is no longer the only regional actor pursuing a policy of connectivity and nonalignment." Moreover, Turkey’s past support of autocrats—such as Qaddafi and Assad—and the AKP’s treatment of the Kurdish separatists may prove to expose Turkey as ideologically liberal in theory but practitioners of realpolitik in reality. As Erdogan must realize, supporting democracy abroad invites criticism of any non-democratic practices in the domestic realm.

            Lastly, because of the countries’ recently good relationship, Turkey cannot get many more miles out of anti-Israeli rhetoric. Given Turkey’s past relations with Iran, Israel, Europe, Syria, and the U.S., the country has simply straddled too many strong divides in the region. For every Arab won over by anti-Israeli rhetoric, another frets that Israel is Turkey’s largest military supplier. For every Shia won over by close ties with Iran and Syria, Turkey’s friendship with the U.S. and European desires are cause for concern. Turkey is not Arab and is unwanted by the Europeans.

Conclusion

            Turkey presents itself as both physically and politically straddling the Bosporus; at the same time it is both European and Middle East, while equally neither at all. This places Turkey in a unique position to convincingly advocate for Islamic democracy in a region which has shown to thirst for such a system. Since the beginning of the Arab Spring revolutions, Erdogan has spoken loudly about his support for democracy in the region, especially in Tunisia and Egypt. However, he has carried a small stick which he has often hesitated to use, such as in Libya and Syria. This has led many to question Turkey’s noble motives, having them chalked up as just as self-interested as any other actor in the region.

In order to continue to capitalize on the revolutions taking place in the Middle East, Turkey must continue its public diplomacy strategy of talking to the future power holders in that region: the people. To remain influential among the ‘Arab street’ as elections occur and new governments take hold, Ankara must remain true to both Arab issues and democracy. As such, Turkey must continue to champion the Palestinian cause while making peace with the Kurds, so as to not appear hypocritical when supporting revolutions abroad.