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Mar 28, 2008 
By 
NEW YORK CITY?!?
I’m about to violate Texas law. I’m going to state that jurors, in deciding cases involving “victimless crime” that aggrieve the conscience such as drug possession, criminal but consensual adult sex, or purchasing sex toys, have every right to disregard the law if they feel it unjust, and to vote for acquittal. I’ll go further and state that jury nullification of unjust laws is a controversial but ancient fixture in the common law of England and the United States.
According to this Texas prosecutor who wisely chooses to remain anonymous, what I just wrote was a crime. That’s right. In Texas simply suggesting that jurors are free to exercise the conscience in choosing not to convict under unjust laws can send you to jail. Since someone in Texas will read this, I should be afraid, and I might be if not for the First Amendment.
The writers of The Wire, in advocating the actions that they have, are essentially promoting the commission of a crime. Had they made the statements contained in the Time magazine article in Texas, then they would almost certainly be guilty of aggravated perjury. Outrageous, no? How dare I suggest that the exercise of their First Amendment rights could possibly constitute a crime?
How dare you indeed? According to Anonymous, the answer is that for a juror to violate his oath to follow the law is perjury, and to encourage perjury, even to nobody in particular during a newspaper interview, makes one guilty of the same offense.
Unfortunately for anonymous Texas prosecutors, the First Amendment does protect this speech, both as to the writers of HBO’s wonderful television show, The Wire, and as to me. I suppose Anonymous was checking out steers the day they covered Brandenburg v. Ohio (holding that in order to convict for speech which merely advocates something which might be criminal there must be an incitement to “imminent lawless action” to specific individuals) in constitutional law.
The Supreme Court, to the extent Anonymous wishes to prosecute such speech, has already nullified the law.
Via The Agitator, whose comments on this are well worth reading.
Last 5 posts by Patrick
- In The Days Before The Digital Millennium Copyright Act - July 3rd, 2009
- Sixty-Five Years Ago, A Corpsman Snaps His Forceps - July 3rd, 2009
- J-E-W-S - July 2nd, 2009
- Man Cannot Serve Ron Paul And Rush Limbaugh Both - July 2nd, 2009
- A Time For Justice - July 2nd, 2009
