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FIJA in the News & Jury Nullification | 28 Jul 2017

-Federal Judge Upholds Anti-Free Speech Order

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Late last night we got word that federal Judge William Martinez (note that there is more than one Judge Martinez in this case) has ruled in favor of Chief Judge Michael Martinez, in his official capacity as chief judge of the Second Judicial District, regarding the anti-First Amendment order at the Lindsey-Flanigan Courthouse in Denver, Colorado. The ruling dissolves the preliminary injunction temporarily halting enforcement of the order’s anti-pamphleteering provision in two areas of the courthouse grounds and surrounding area.

I am not a lawyer and I do not give legal advice, but my best understanding of this ruling is that the prohibition on sharing FIJA brochures in the anti-First Amendment zones outside of Lindsey-Flanigan Courthouse as delineated by Chief Judge Martinez is now back in full force for the time being. It is FIJA’s policy not to break any order in force at the courthouse. It would be counterproductive to preserving our right to work in this area for anyone to break the order while we still have other options on the table. Please do not violate this order. We are looking into our options for moving forward on getting this order overruled.

From my reading of this ruling, federal Judge Martinez seems to have ruled against FIJA and our co-plaintiffs on both physical areas in contention. There were two areas outside the courthouse where state Judge Martinez banned a long list (but not all forms) of expressive activity. Our lawsuit specifically challenged the order’s prohibition on sharing FIJA (and other) brochures in the two areas highlighted in yellow in the figure below.

The white area on the left side of the figure is the roof of the irregularly-shaped courthouse building. A large yellow-highlighted area is clearly visible in the figure adjacent to the courthouse on the right. This highlighted area includes the entire Main Entrance to the courthouse building, as well as the primary walkway leading to it through the area labeled “Patio”. Somewhat less visible due to the coloration of the figure is a yellow-highlighted area to the left of the building. This anti-First Amendment zone encompasses the West Entrance as well as a long stretch of the public sidewalk—an area that has been explicitly treated by the Supreme Court as a traditional public forum for First Amendment Activity—on either side of the West Entrance.

In summary, federal Judge Martinez’ rulings on these two spaces seems to be:
1. Because the plaintiffs’ main focus is on leafletting near the Main Entrance, plaintiffs lack standing to challenge the anti-First Amendment order as it applies to the West Entrance. This sidesteps the little problem that the order bans First Amendment activity in what the Supreme Court seems to pretty explicitly have categorized as the most protected type of forum for First Amendment activity. Since we have been ruled not to have standing to challenge this, the ruling leaves the order in force in that area without regard to the merits of the argument that it is a traditional public forum.
2. Regarding the anti-First Amendment zone on the east side of the building, federal Judge Martinez seems to have explicitly ruled it to be a nonpublic forum. Apparently, this area that leaves people in well-below freezing temperatures throughout much of the winter is actually “an extension of the Courthouse lobby”. That is one inhospitable lobby!

In addition to his ruling, federal Judge Martinez spent nearly three pages scolding FIJA and our co-plaintiffs, saying that we “grossly abuse[d] the expressive freedom granted to them in the Preliminary Injunction.” In addition to the pamphleteering at the courthouse, other activities took place including other legitimate First Amendment activity that was banned by the order. There were also allegations of behavior that was already illegal before the order was put in place.

It is disappointing that federal Judge Martinez made no mention whatsoever of my testimony regarding FIJA’s policy and training with respect to these other types of behaviors. FIJA is VERY CLEAR that juror rights educators are to be courteous, friendly, civil, and generally good neighbors. I make this clear in ALL of the trainings I conduct, as well as in our Volunteer Training for Courthouse Outreach video and our guidelines for those distributing FIJA materials outside of courthouses.

Denver law enforcement and Chief Judge Martinez have ALWAYS had the ability to deal with illegal behaviors before the anti-First Amendment order was implemented. They continued to have the ability to deal not only with illegal behaviors, but EVERY OTHERWISE LEGAL BEHAVIOR PROHIBITED BY THE ORDER except pamphleteering, even while the preliminary injunction was in place. The one and only behavior the preliminary injunction halted enforcement of was arresting people for handing out brochures.

Yet upon issuance of the preliminary injunction, enforcement of all these other behaviors seemed to come to a screeching halt. The nearly uniform lack of enforcement (with the exception of a notable case where no bad behavior actually took place but two arrests were made, including of one person who wasn’t even present) is curious. We can’t see inside anyone’s head to ascertain their motivations, but this gives the appearance of a sort of work slowdown or stoppage with Denver officials abstaining from their duties in the hopes of sinking juror rights outreach by associating it with unrelated bad behavior.

Despite the sorry state of affairs for legitimate exercise of free speech at the Lindsey-Flanigan Courthouse, I will re-emphasize that the original situation that led to this cascade of events remains in the WIN column. Despite prosecutors’ attempts to overturn the dismissal of felony jury tampering charges against Mark Iannicelli and Eric Brandt for sharing FIJA brochures, they have to date been unsuccessful in that endeavor.

Case Documents
Denver DA Press Release, 10 August 2015 (.pdf)
Complaint and Information and Statement of Probable Cause (.pdf)
Civil Rights Complaint
Exhibit 1 to the Complaint
Exhibit 2 to the Complaint
Exhibit 3 to the Complaint
Motion for Preliminary Injunction
Amended Motion for Preliminary Injunction
Order Granting Motion for Preliminary Injunction
Motion for Order to Show Cause Why Defendant Robert C. White Should Not Be Held in Contempt of Court
Exhibit 1 to the Motion to Show Cause
Exhibit 2 to the Motion to Show Cause
Final Findings of Fact and Conclusions of Law Ordered

Other FIJA Documentation
Is Juror Rights Education Legal or “Jury Tampering”? infographic
Man Sharing Jury Nullification Information Arrested in Denver
Denver DA Doubles Down on Jury Nullification Arrests
FIJA Seeks Injunction Against Denver Arrests for Free Speech
Denver DA Creates Countless Fully Informed Jurors
Judge Halts Unconstitutional Ban on Juror Rights Education
Malicious Prosecutions Continued by Denver DA’s Office
Juror Rights Educators Triumph AGAIN in Denver

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