Freedom by Jury

Little is made of the date
Sept. 5. This year it’s Labor Day, but most people are unaware of the date’s
historic significance beyond this particular coincidence.

It was on that date in 1670 that
a group of jurors in London made manifest their power to invalidate an unjust

We can draw a direct link
between several of our First Amendment guarantees to jurors deciding that
certain laws are no good and that they would not convict defendants prosecuted
under such laws. Today we call it jury nullification. Just as states may
nullify federal laws, jurors can nullify laws as well. Some jurors risked their
own freedom to secure and preserve that right.

In 1670, William Penn was
arrested for preaching the Quaker faith to “an unlawful assembly.” The facts of
the case were clear. He did violate the law as written, but four of the 12
jurors voted to acquit. The judge threw them in jail and tried to starve them
into changing their vote. Within four days of that incarceration, three of the
jurors caved in and paid their fines, but juror William Bushell held out,
eventually getting his case to the Court of Common Pleas. The chief justice
ruled in favor of Bushell, saying jurors could not be punished for their votes.

The concept of nullification
crossed the Atlantic with the English and was used by American colonists in the
case against John Peter Zenger. In 1735, Zenger was accused of seditious libel
for his editorials attacking the royal governor of New York. The law was clear.
It was illegal to publish anything critical of a government official, even if
the criticism was true, and Zenger did publish critical remarks. The jury
acquitted Zenger in spite of the judge’s charge that truth was no defense and
they were only to judge whether the material had been published.

Nullification was used later in
our history to help overturn the Fugitive Slave Laws in the mid 1800s. In 1852 Lysander
Spooner, a Massachusetts lawyer wrote: "the Fugitive Slave Law… was so
obnoxious to a large portion of the people, as to render a conviction under it

It’s also been argued that
women’s suffrage could have come about as soon as 1873 had the judge in the
Susan B. Anthony case informed the jurors of their rights or allowed Anthony’s
lawyer to introduce the concept. Anthony was on trial for illegally registering
to vote in a federal election. It was illegal for a woman to vote, even
register to vote at the time. As it was, the judge directed a guilty verdict and
the jury acquiesced.

John Jay,
the country’s first chief justice, routinely told jurors: "You have a
right to take upon yourselves to judge [both the facts and law]."

states, including Pennsylvania and Delaware, include such provisions in their
constitutions. Yet, by the late 1800s, judges had stopped informing jurors of
their rights and, today, people are thrown in jail for handing out leaflets
telling people about nullification.

So while we can connect our
freedoms of speech, press and religion to nullification, that seminal concept
is in jeopardy. What will go next?

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