Diary

Fighting the DISCLOSE Act – When Free Speech Is In Danger: Bringing Out The Claws

On this we should all agree: any attempt to control the political speech of bloggers or anyone else should be met with resistance so strong the irresistible force of government meets the immovable object of enraged, fed up citizens. I am talking here of the DISCLOSE act. Erick Erickson of Restate describes the proposed legislation: Democrats Want to Regulate Bloggers & Shut Us Up

Just when you thought the Democrats had gone after every possible sub-group in America, either through punitive taxes, confusing regulatory burdens, stifling federal takeovers, or just rhetorical attacks, it appears that the Democrats had left out one group.

Bloggers.

Until now

Should the liberals in Congress – a bastion of tyranny and arrogance – attempt such foolishness, they better be prepared for a solid wall of civil disobedience. For those not enjoined to the effort of civil disobedience, there is still a very important role to play without breaking a single law. This travesty fits the idea of jury nullification like a snug, fine leather glove fits a hand:

Jury nullification occurs when a jury in a criminal case acquits a defendant despite the weight of evidence against him or her.[1] Widely, it is any rendering of a verdict by a trial jury which acquits a criminal defendant despite that defendant’s violation of the letter of the law—that is, of an official rule, and especially a legislative enactment. Jury nullification need not disagree with the instructions by the judge—which concerns what the law (common or otherwise) is—but it may rule contrary to an instruction that the jury is required to apply the “law” to the defendant in light of the establishment of certain facts.

Strictly speaking, a jury verdict which rules contrary to the letter of the law pertains only to the particular case before it; however, if a pattern of identical verdicts develops in response to repeated attempts to prosecute a statutory offense, it can have the de facto effect of invalidating the statute. Jury nullification is thus a means for the public to express opposition to an unwanted legislative enactment.

From Fox News: Justice Often Served By Jury Nullification

In his 1998 book “Jury Nullification: The Evolution of a Doctrine,” Clay S. Conrad defines “jury nullification” this way: “Jurors in criminal trials have the right to refuse to convict if they believe that a conviction would be in some way unjust.”

The doctrine of jury nullification (search) rests on two truths about the American criminal justice system: (1) Jurors can never be punished for the verdict they return, and (2) Defendants cannot be retried once a jury has found them not guilty, regardless of the jury’s reasoning. So the juries in both the Rosenthal and Paey cases could have returned a “not guilty” verdict, even though Paey and Rosenthal were undoubtedly guilty of the charges against them.

This may sound radical, perhaps even subversive, but jury nullification serves as an important safeguard against unjust laws, as well as against the unfair application of well-intended laws. It’s also steeped in American and British legal tradition….

….Indeed, Americans can be proud of our history of boldly and valiantly standing up to unjust laws (if not so proud of the laws themselves). There are multiple cases of jurors refusing to convict violators of the Alien and Sedition Act (search), the Fugitive Slave Act (search), and alcohol prohibition laws, among others.

Should this law come to pass, there are two basic routes whereby we may find ourselves in a situation requiring brave bloggers to flaunt the system at risk of being arrested, fined, and possibly jailed. The most immediate path to resistance is the successful passage of this law and the refusal of a court to order an injunction against the law until the constitutionality of the case is heard. This would effectively and immediately attack free speech in a way unseen in any of our lifetimes. It cannot be allowed to stand. A fortress of resistance must be erected and bloggers from both sides of the political spectrum by the tens of thousands must be prepared to challenge the law through the act of violating the law. Some who don’t run a blog would, I hope, decide to join the fracas and begin their blogging career in full defiance of such an affront to a fundamental liberty. It will then be up to jurors using stealth tactics to bypass questions that may expose them as conscientious objectors to such an unconstitutional law to do everything in their power to sit themselves as a member of a jury and await the moment when they can announce the defendant not guilty.

The second route is the case making its way to the Supreme Court of the United States while still under injunction and then subsequently ruled constitutional by the Court. As I state in Jury Nullification – The Absolute Power of the People the Supreme Court of the United States is not the final arbiter of the Constitution. It is the states and it is you and me. The article also points to various sources of information which demonstrate beyond any reasonable doubt the perversion of our constitution – occurring over the past two centuries mainly through abuses by the Supreme Court of the United States, but aided and abetted by legislators and presidents during certain historical periods – is of such severity that this country has veered so far from our founders vision they would find it unrecognizable and abhorrent.

In order for us to win the fight against tyranny and against Statism we must show those in power the conclusive and steadfast resolve of our willingness to resist them in vast numbers through non-violent civil disobedience, state level nullification, and jury nullification. By using the power of the jury box, you empower yourself against tyranny; the message sent is loud and the clarity pure.

Turnabout is fair play; play games with our fundamental rights and you will find we have a few games of our own. Most importantly, never fear, for fear is the fuel upon which tyranny is fed. Instead, make them fear you – in the jury box and at the ballot box. Be creative. Smile politely. Win. Stick your thumb in their eye – figuratively speaking – and laugh at their vain attempts to stifle criticism by shutting down one of our most powerful rights as citizens to check the power of the government.

From Hot Air’s Ed Morrissey:

The attack on free speech has began. The first shot in this new front of the Obama, Reid, Pelosi triumvirate fired into faces of liberty from a tyrannical capital growing more so by the day. Either we stand together and push back, liberal and conservative, against such an abuse of power or sit idly by and let them steal from us until there is nothing left to take from you, your offspring or their offspring. The time to stand is now. Get the word out on jury nullification. Let the word wring in the ears of those at the capital and let them know of a lion about to be unleashed.

Cross-posted