Is Sharing Jury Nullification Information at Courthouses Jury Tampering?

Is Sharing FIJA's Jury Nullification Information at Courthouses Jury Tampering?

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Is handing out jury nullification flyers or holding signs First Amendment-protected activity?
Could the government consider handing out jury nullification brochures or holding a sign near a courthouse to be jury tampering?
Courthouse outreach training

This resource was first created on 7 June 2021 after I unsuccessfully tried to answer a question on Reddit. After posting just part of this, I was told I was banned for violating rules against:

requests for external contact (a rule I see neither on the subreddit rules, a screen capture of which is to the right, nor in the general Reddit rules, and
for PII. FIJA takes privacy seriously, but every person I've mentioned was involved in a publicly reported case as you can see from the links, and the rules specifically state that "it is okay to post published situations".

I truly don't see how I violated any of the rules, but I have apologized to the moderators anyway. Because it is something I find myself addressing over and over, however, I am posting this resource on our website and will be updating it periodically in the future.

Kirsten C. Tynan
Executive Director
Fully Informed Jury Association

Kirsten Tynan, Executive Director of the Fully Informed Jury Association here. I am not a lawyer, and this is not legal advice. However, I am probably one of the most knowledgeable people on this subject at the time I write this, based on my experiences from the years I've been with FIJA. Let me see if I can help address two main issues here:

1. Is handing out jury nullification flyers or holding signs First Amendment-protected activity?

Yes, handing out pamphlets and holding signs in support of jury nullification IS protected by the First Amendment. However, the finer details of how you are doing it VERY MUCH matter.

Where specifically are you doing this?
Not all public property is the same for First Amendment purposes, and moving just a few feet in one direction or another can make a big difference in what is legal or not.

The Supreme Court at this point considers public property to fall into three categories for First Amendment purposes: traditional public forums, designated public forums, and nonpublic forums. Traditional public forums are most protected for this kind of activity. In a nutshell, for traditional public forums, the government is allowed ONLY content-neutral reasonable time, place, and manner restrictions that are narrowly tailored to serve a compelling state interest.

For example, the government legally may not (all else being equal) allow anti-jury nullification signs while simultaneously prohibiting pro-jury nullification signs because that is favoring one viewpoint over the other. It can, however, say that you are not allowed to block people's access into the courthouse when you are holding your sign or handing out flyers so long as it applies to all sign holders and pamphleteers. This serves a compelling interest of people being able to do business in the courthouse.

SCOTUS has not clearly delineated everything that does and does not counts as a traditional public forum, so this remains a matter that is litigated from time to time. Public sidewalks, however, are one of the locations it has specifically identified as a traditional public forum.

If anyone would like me to take a look at a specific courthouse for you, please feel free to email me at aji@fija.org. I have a process I go through that involves looking at the local geography on Google Maps, browsing the courthouse website for administrative rules, browsing the local ordinances for anything that might apply, etc. I have even, on occasion, appealed to friends who work professionally in GIS for information that has helped make a difference to volunteers' ability to do this work.

Though I can't guarantee where would be "safe" to hand out information (see more on this below), I can often make some helpful comments about what seems more or less likely to pose an issue and how you might mitigate those risks. Please do not wait until the last minute. I am the only full-time office staff FIJA has for all of our operations nationwide, so the odds of me being able to help you are much higher if I have some time to fit it into my current workload.

How specifically are you sharing this information?
General juror rights education as FIJA conducts it is not jury tampering.

We do not ask people if they are jurors or otherwise try to identify or single out jurors when handing out information at the courthouse. Rather, we offer information to everyone regardless of who they are.

When I go out, I find a location where I am not blocking anyone's path but have access to many passersby. I then mentally mark off the space in which I plan to move and approach anyone who comes into that space to offer them a brochure. The only exceptions I make are if I would be interrupting someone who is talking on the phone or to someone else. Sometimes I wind up handing information to people who have business in the courthouse. Sometimes they go to people not doing business at the courthouse, sometimes to courthouse administrative employees, and I know I have even handed a few to lawyers and a couple to law enforcement officers.
We do not mix juror rights outreach with case advocacy. We do not advocate for jurors to vote one way or the other in any case at hand.
We simply inform everyone of the option of jury nullification that jurors have because that they either will not be told about it or will be outright lied to about it once they enter the courthouse. Whether or not they see fit to use it is up to them and is not our concern. This has generally been upheld in the courts as First Amendment-protected activity and NOT jury tampering.

Regarding the cases mentioned by another poster:

Michigan—Keith Wood was victorious in having his wrongful conviction overturned in the Michigan Supreme Court. While the Court ruled on the basis of its state's definition of a "juror", that was a result of how Keith's lawyer chose to defend him. If you look at the first footnote in its majority opinion, you will see that the majority have made favorable remarks about jury nullification. Speaking with some lawyers about why they would have added this unnecessary footnote, we believe it is a subtle message that they would also have been amenable to upholding his rights on First Amendment grounds had his attorney chosen to argue that.
Colorado—Mark Iannicelli and Eric Brandt were successful in having their wrongful convictions overturned in the Colorado Supreme Court. Note that in this case, the Colorado Supreme Court ruled that "a defendant’s effort to influence a juror must be directed at a specifically identifiable case" to be considered jury tampering, thereby excluding general juror rights education as FIJA conducts it.
New York—The wrongful jury tampering indictment against Julian Heicklen was dismissed before it ever went to trial. In her ruling, Judge Kimba Woods stated that "The Court declines to stretch the interpretation of the existing statute prohibiting communications with a juror in order to cover speech that is not meant to influence the actions of a juror with regard to a point in dispute before that juror or the outcome of a specific case before that juror."
Nevada—This is the only one on the poster's list that I'm not familiar with, but what is written in the article is consistent with what I've been saying. This person was reportedly on the judge's radar because he was contacting jurors:
""A person has a right to demonstrate ... we don't fault him for those views," said Mosley, who believes Kindred was obstructing justice by contacting jurors."
Note that he was also given the chance to walk away without getting arrested, but chose to continue. I also could not find any information on its outcome, so I don't know if it went to trial, whether or not he was convicted, and if so, what was the result of any appeals.

The poster said that there are probably other such cases, and that is correct. Documented (as opposed to word of mouth where I've never seen anything in writing) cases I'm aware of where someone had legal trouble related to juror rights education include:

Nevada—Yvonne Regas had all charges against her dropped. I am not sure if these were specifically jury tampering charges or other charges, but they were related to handing out jury nullification literature.
New York—Michael Picard was not charged with jury tampering, but rather for violating a 200-foot anti-free speech zone around a New York courthouse. Not only were the charges dropped before it went to trial, but he went on the offensive and successfully sued for a permanent injunction against the law.
Illinois—This wasn't even at a courthouse, but Luke Lamb was charged with jury tampering for comments he made on Facebook. This was a very sketchy case to begin with since the officer he was running against in a political election for sheriff was the one who cited him, thereby interrupting his campaign until his trial was over. Luke Lamb was found by a jury of his peers not guilty of the felony of unlawful communication with a juror.

The one and only case I am aware of where someone was successfully convicted of jury tampering without it being overturned on appeal for sharing jury nullification information was someone who:

went inside the courthouse (a non-public forum), and
was deemed to have purposely sought out jurors in a particular case of interest to him (his friend was on trial).

Even in this case, however, the accused had been warned prior to his arrest and had plenty of opportunity to cease and desist before he was arrested or charged. That is typically the case, in my experience. Not universally, but most often, law enforcement or courthouse security who are trying to bully people out of doing this will tell people to leave before they arrest them.

The one time I was threatened with arrest when handing out brochures across the street from a federal courthouse in Helena, Montana, the federal marshal who came out to threaten me did precisely that. Unprepared to go through the legal obstacle course at that time, I simply left without being arrested. We do, however, have some detailed suggestions on how to deal with this scenario in the trainings I will link to below.

So a shorter word on the second issue then...

Could the government consider handing out jury nullification brochures or holding a sign near a courthouse to be jury tampering?
Yes. The government CAN pretty much do any damned thing it wants. That does not mean it is LEGAL for them to do so. Nonetheless, I consider this a low risk activity when done conscientiously according to FIJA's training.

My experience both in doing this myself over the years and seeing other people do it is that most of the time there won't be any problem at all. In the few cases when government agents try to run off juror rights educators, they almost always will give them an opportunity to leave before arresting them.

It is very uncommon for someone to be arrested, but if they are, prospects are still good in the long run. I cannot think of a single case in the time I've been with FIJA (since 2008) that one of these such cases ended with a conviction that stuck through the appeals process.

Moreover, there are MANY, MANY more instances where people hand out brochures or hold signs at courthouses and nothing happens to them at all. These are generally not considered newsworthy, of course, so all you will see in the news are the scary cases.

Except last year during the pandemic, each year for Jury Rights Day (5 September) I have sent out boxes and boxes of free brochures to people across the country who then go to courthouses to conduct juror rights outreach. Most often either their activity is ignored by the government, or someone comes out from the courthouse to see what is going on and just warns them not to block the way into the courthouse or anything like that. A couple of times people have been asked to move. I cannot think of anyone who has been arrested on Jury Rights Day for handing out our brochures during my time with FIJA.

Volunteer Training for Courthouse Outreach
If you are considering doing courthouse outreach, I strongly urge you to take the time to view a couple of videos on YouTube where I get into more detailed training:

I hope that helps you assess your hypothetical situation, and I would be happy to provide any more information I can if anyone has any other questions about this. If you get pushback from courthouse officials threatening your or otherwise telling you that you are not allowed to hand out FIJA brochures in a particular location, I want to hear about it! I can sometimes help you out with information that you can take back with you in order to assert your legal rights without getting arrested.

Is It Jury Tampering?

Is Sharing FIJA's Jury Nullification Information at Courthouses Jury Tampering?