February 28 roundup

by Walter Olson on February 28, 2011

  • Feds indict activist for handing out “jury nullification” tracts outside courthouse [Volokh, Greenfield] Anti-abortion billboard taken down after demand by NYC pol; co. says fear of violence was spur [NY Times]
  • Pigford class action (USDA bias against black farmers) defended and assailed [Friedersdorf and readers, Daniel Foster/NR, Mark Thompson/LOG, earlier here, here, here, etc.]
  • Avik Roy on Pennsylvania defensive-medicine study [Forbes]
  • Backstory: Scott Walker battled AFSCME for years as Milwaukee County exec [Aaron Rodriguez, Hispanic Conservative] “Wisconsin’s teachers required to teach kids labor union and collective bargaining history” [Daily Caller]
  • “The return of the $0 Costco fuel settlement” [CCAF]
  • Historic preservation vs. the obesity crusade: should a vintage Coke sign in San Francisco’s Bernal Heights neighborhood come down? [SFGate]
  • Law blog that covers a single beat closely can turn itself into a valued practice tool [Eric Turkewitz on John Hochfelder's New York Injury Cases]
  • “Soda suits: Banzhaf browbeats school officials” [five years ago on Overlawyered]

{ 5 comments }

1 VMS 02.28.11 at 9:33 am

@ Jury Nullification– I personally believe that Volokh goes too far when claiming that free speech rights trump notifying jurors about jury nullification as they enter the courthouse. I think that the government has a compelling interest in the orderly administration of justice without additional interference from someone who wants to tip the apple cart. I also believe that laws such as New York’s, strike the least intrusive balance between free speech rights and the compelling governmental interest.

If the guy wants to campaign for jury nullification in a particular case, or advise the potential pool of jurors that they have the right to “nullify,” he is free to buy TV or radio time, blog the Internet, make a mass mailing, or stand on his soapbox more than 200 feet from the courthouse and do so.

New York as part of its Penal Law has the following:
§ 215.50 Criminal contempt in the second degree.
A person is guilty of criminal contempt in the second degree when he engages in any of the following conduct:
. . .
7. On or along a public street or sidewalk within a radius of two
hundred feet of any building established as a courthouse, he calls
aloud, shouts, holds or displays placards or signs containing written or printed matter, concerning the conduct of a trial being held in such courthouse or the character of the court or jury engaged in such trial or calling for or demanding any specified action or determination by such court or jury in connection with such trial.
Criminal contempt in the second degree is a class A misdemeanor.

There are also laws against electioneering where free speech rights are somewhat curtailed that have been held constitutional. One cannot stand within 200 feet of a polling place and hassle the voters to vote one way or another, whereas one can grandstand anywhere else and do so. These electioneering laws are constitutional because the government has a compelling interest to maintain orderly polling places. So too the government has a compelling interest to maintain orderly courts.

Is 200′ an arbitrary number? Sure it is. But s a workable solution. Should someone be guilty of criminal contempt if he were 198 feet from the courthouse but the law makes the same activity protected at more than 200′. Probably not. But handing prospective jurors leaflets and being in-their-face is far different than a general protest a sufficient distance away.

This will be an interesting case. There are no details as to the exact conduct of the man arrested or what laws were allegedly violated, and I did not research as to whether the feds have a law similar to New York’s concerning criminal contempt.

2 No Name Guy 02.28.11 at 12:47 pm

VMS
In reading what you quote above, to wit: “…concerning the conduct of a trial being held in such courthouse…” it seems to me that this refers to a PARTICULAR trial or case. (The conduct of A trial being the phrase that seems to imply this).

This doesn’t seem to apply to the general case that in any trial, the jury may nullify. If they meant the general case, they would (should?) have phrased it as “…concerning the conduct of any trial…”.

Now, if there was someone saying to jurors – “hey there potential juror, we’s tink dat des charges against our buddy Gambino ought to be nullified”, well now….that’s clearly about A trial.

3 gasman 02.28.11 at 2:56 pm

“Historic preservation vs. the obesity crusade: should a vintage Coke sign in San Francisco’s Bernal Heights neighborhood come down?”
Because the obese wouldn’t be that way if only we never mentioned f-o-o-d around them.

“…in connection with such trial.”
Gotta go with No Name. The text is pretty clear that it applies to situations when nullification is advocated for a specific trial, not merely advocating that jurors consider nullifying unconscionable application of law.

4 John Burgess 02.28.11 at 8:02 pm

I agree with No Name Guy about the law requiring a specific trial, not trials in general. I also think that a law that tries to protect jurors by punishing all other people transiting a courthouse is way beyond what should be permissible.

Further, I think it runs rather roughshod over the 1st Amendment to require a speaker to buy airtime to express his views. The public street is the forum most widely understood to be protected.

I don’t have much truck with nullification, but I do with the 1st Amendment.

5 Frank 03.02.11 at 9:29 am

re: Pigford settlement fraud

I have no way of checking the statistics (well, no way I wish to act on) cited in Atlantic suppoerting the claim of wide-spread fraud in settlement payouts. The main contention is that according to someone else, there were 18,500 black farmers according to the 1997 census; surprisingly there have been 100,00 claims.

I would only suggest that according to the 1997 Agricultural census (info accessed here http://www.epa.gov/oecaagct/ag101/demographics.html )
there were 2,000,000 farms in the US, representing approximately 1% of the population.

1% of the black population in 1997 would have been 346,000 black farms.

The percentage of US population that was black was 12.3%. Keeping in mind that one may be a farmer without owning the farmland, 12.3% of 2,000,000 farms is 246,000.

The article’s allegations are not so well-supported as to convince me of wide-spread fraud. I think the public needs more hard evidence on this issue.

Comments on this entry are closed.