Thursday, July 28, 2022

Law prohibiting jury nullification signs near the courthouse is not unconstitutional

This guy would stand outside the Bronx County courthouse with a sign that told passersby to "Google jury nullification." He wanted people to know that juries can render verdicts that would reject unjust laws. Judges do not tell jurors about jury nullification, and state law prohibits communications like this within 200 feet from any courthouse, as it might influence jurors to wreak havoc on the system. Does this law violate the First Amendment?

The case is Picard v. Magliano, issued on July 27. Picard was arrested for the sign, but the charges were dropped because it was unclear if he stood within 200 feet of the courthouse. He sues to strike down the law, arguing that he can be used against him again. The Court of Appeals therefore provides an extended discussion on plaintiff's standing to even bring the case, determining that he does have standing under the principle that "if a plaintiff's interpretation of a statute is reasonable enough and under that interpretation, the plaintiff may legitimately fear that it will face enforcement under the statute, then the plaintiff has standing to challenge the statute."

The State of New York is defending the case, having taken up the appeal in the first place, as the district court said the law violates the First Amendment on its face. The state does not disagree that, as applied to plaintiff, the law might be unconstitutional, perhaps because there were not trials going on the day he was arrested or no proof that any jurors were influenced by his sign. 

So the question is whether the statute is unconstitutional on its face. The Court of Appeals (Lynch and Park) says it is not unconstitutional, at least not on the limited preliminary injunction record before the district court. (In dissent, Judge Newman says the law violates the First Amendment on its face). While the law is a content-based speech restriction in that it prohibits placards dealing with jury nullification and nothing else, the statute is narrowly-tailored to satisfy a compelling governmental interest. While this is the most difficult legal standard to overcome in constitutional law, the state is able to preserve the statute because the compelling interest is preserving the integrity of the justice system in ensuring that jurors issue verdicts on the facts and law and not based on their personal beliefs. The statute is also narrowly-tailored because it only prohibits such speech close to the courthouse.

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