Juries speak for us

Dear Readers, In the end, jurors define laws.  Legislators, our elected representatives, may make laws, but jurors make them real.

After a law comes into existence, it is interpreted through enforcement or application, with the penultimate interpretation often being a jury verdict.  Ordinary citizens react to written statutes and breathe life into them.

“Freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances,” is protected by the First Amendment.  These are mere words that draw their spirit from the specter of jurors.

When civil laws are violated, litigants step forward to seek justice.  Jurors decide the meaning and violations of the law in rendering their unanimous conclusions.  In civil lawsuits, the “money” decision is … well, money.  It is true that in a civil trial, liability is typically a jury’s first task, but it all comes down to how much money is involved.

Civil lawsuits settle because of risk/benefit analysis of what a jury would do.  How much does it cost to litigate, and what are the risks of litigation?  Indirectly, the looming presence of a jury resets legal boundaries by these settlements.

Recently, we have seen a plethora of defamation lawsuits, from the Dominion lawsuit against Fox News, to President Trump threatening to sue 60 Minutes over its editorial decisions of Kamala Harris before the last Presidential Election.  These cases were all settled out of court for millions of dollars.

These settlements have left news media vulnerable to being sued.  President Trump has sued the Wall Street Journal over its reports on his connections to Jeffrey Epstein.  It might have been better to let a jury suss out the liability issues, even if monetary risks loomed.  Regardless, we live in a new frontier of freedom of the press and defamation.

Prosecutors and law enforcement officers determine if laws have been violated in making choices to arrest and prosecute.  These decisions are often the difference between differentiating criminal activity from acceptable behavior.  Yet again, it’s a jury that defines the line.

Just a few weeks ago, Sean Dunn was found not guilty of a misdemeanor for tossing a Subway sandwich at federal authorities in Washington, D.C.  A form of protest vindicated by 12 citizens and a rebuke of the Government.

The First Amendment’s very genesis is a court case from colonial times.  One of our gripes with the Crown is that it rendered our press less than free.  18^th-century printing presses churned out popular pamphlets.  The Federalist Papers, our public debate on the Constitution, were a series of pamphlets penned by three (3) of our most prominent Founding Fathers, John Jay, Alexander Hamilton, and James Madison.

Our British overlords were sensitive to criticism from the colonists.  As you know, there was grumbling and unrest in the mid-18th Century leading up to the Boston Tea Party (1773).  We were increasingly upset at being economically exploited for the sake of the greater Empire.

In 1734, John Peter Zenger criticized the royal Governor of New York, William Cosby, in a series of articles printed and published in the New York Weekly Journal.  This did not go over well with the authorities, and he was charged with something called “seditious libel,” or undermining the Royal Government in speech.

Zenger’s printing press was seized, he was arrested, and he spent several months in jail awaiting trial in 1735.  The Crown prosecutors asked the jury to find him guilty for the mere act of printing vile anti-government missives, regardless of their truth.

Prominent Philadelphia attorney Andrew Hamilton championed Zenger.  He argued that just publishing speech was insufficient to establish the commission of a crime.  He asked the jury to consider, even if the judge did not instruct them as such, that the words published had to be proven defamatory or false.

The jury agreed with Hamilton and acquitted Zenger; a historical precedent of jury nullification or the righteous ability of a jury to make a just finding contrary to the precise black and white text of a law.  This verdict was also the antecedent to the idea that truth was an absolute defense to libel.

Men like Zenger sparked a revolution.  A colonial jury confirmed a pamphleteer had the right to advance colonial grievances against the Crown.  Dunn’s act of defiance might have been silly or impetuous; a modern jury confirmed a citizen may toss a sandwich in protest.  Just two instances illuminate the power of juries.

Warner Robins attorney Jim Rockefeller is the former Chief Assistant District Attorney for Houston County, and a former Assistant State Attorney in Miami.  Owner of Rockefeller Law Center, Jim has been in private practice since 2000.  E-mail your comments or confidential legal questions to ajr@rockefellerlawcenter.com.