Moral Mondays and jury nullification

November 3, 2013 

Once upon a time in America, it was against the law to criticize the government and it mattered not if what was said were true or false. Can fair and truthful criticism of government support criminal convictions today?

In the 1730s, a publisher of public grievances critical of government was prosecuted. In 2013 protesters at the N.C. legislature have been prosecuted. In 1734 the defendant was found not guilty. In 2013 we have a disturbingly mixed bag of verdicts.

Examination of the way in which the 1734 prosecution produced an acquittal may offer a guide to solving the modern question of what to do about public expression of concern over recent legislative actions.

Some 50-odd years before the protections contained in the First Amendment came into being, some public officials supported the Alien and Sedition Act – libel law – because they reportedly felt American democratic government was too fragile to withstand public examination. Criticizing the government was not allowed.

Soon after appointment by the British crown to the office of royal governor of the New York colony, William Cosby earned a reputation of dereliction of duties and corruption in office. Printer John Peter Zenger, formerly an indentured servant from Germany, was urged by political opponents of the unpopular Cosby to ink up.

In his New York Weekly Journal, Zenger printed pointed attacks against the governor. Cosby reacted by having copies of the New York Weekly Journal seized and burned. Zenger was prosecuted for criminal activity.

At the jury trial in 1734, Zenger’s lawyer Andrew Hamilton, a famous criminal defense attorney, argued that no one should be punished for speaking critically of the government when that criticism was both truthful and fairly presented. The prosecuting attorney argued that the truth was irrelevant in Zenger’s case and that Hamilton’s legal stipulation that Zenger had printed the challenged comments was proof of guilt.

Under the interpretation of the laws of sedition of the 1700s, it was clear that Zenger had violated the British law. However, after very brief deliberation, the jury found him not guilty! The power of a jury, the finders of ultimate fact or “truth” in a criminal case, to ignore the law and render a verdict contrary to the expected dictates of the written statute is known today as “jury nullification.”

Such a voting of conscience by a jury is rarely seen and is certainly a controversial action. Repeated jury nullification of charges of violation of a specific law should be taken as an indication that the law should be revised or discarded. The Zenger verdict did not immediately result in revision of sedition laws, but many years later the verdict gave rise to protections found in the First Amendment.

Although there are differences between Zenger’s charges and the approximately 920 charges against the Moral Monday protesters arrested in Raleigh, important lessons can be learned.

Zenger’s was a case of newspaper-published libel. The 2013 Moral Monday protesters’ situation adds a “trespassing” charge and asks whether any words they spoke created a clear and immediate danger to anyone at the scene. Are the Moral Monday cases protected speech?

First Amendment law has been the product of judicial decisions since the 20th century. On its face the amendment offers protection from abridging “freedom of speech or of the press,” but the amendment does not mean that all variations of all uttered words are protected.

In 1919, the U.S. Supreme Court, speaking through Justice Oliver Wendell Holmes, created the now famous “clear and present danger” test in Schenck v. United States. The case involved alleged violations of the World War I federal Espionage Act, which, in part, prohibited language disruptive of the government’s war effort. When antiwar protesters advocated noncompliance with the draft and were criminally charged, they raised the First Amendment in defense. Schenck asked whether the uttered words were of a kind, and used under circumstances, where clearly dangerous disruptive actions would probably erupt. Did Congress have a right to prevent those disruptive actions?

Numerous cases have refined the concept of a “clear and present danger” since 1919, but the basic idea remains.

Criminal conviction of the Moral Monday folks seems harsh. The resolution of the prosecution of the Moral Monday protesters might usefully involve the concept of “jury nullification.” Let the government know how much the public is not inclined to convict those who truthfully and fairly criticize our lawmakers.

John T. “Jack” Hall is a former assistant district attorney in Wake County.

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