John R. Burton
1590 Harbor Blvd.
Belmont CA 94002

Clerk of Court
Fifth District Court of Appeal
300 South Beach Street
Daytona Beach, FL 32114
November 14, 2012

Amicus Curiae in the Matter of Heicklen and Schmidter v. State of Florida, Appellate Case # 5D113036:

I realize the forum of Amicus Curiae regards expressions of outrage as inappropriate. Fine. I shall do my best to express my position, and lead this court to the proper conclusion, without betraying outrage.

Here we have two defendants held guilty of distributing literature on the grounds of a courthouse in a manner not proscribed by Mr. Belvin Perry, Chief Judge of that locale.

The issues raised by this conviction are numerous, and I do not imagine I will hit them all. But as a layman, accustomed to surveying a broad spectrum of implications, I have had the experience of seeing things that some of the professionals in a particular field have missed, in what has, for some of them, cemented into overly-specialized mindsets.

Some of those issues are these:

1) Whether the judge has the authority to proscribe place and manner of speech in the area outside the courthouse.

While the authority of the judge inside the courtroom has long been established, the court house itself belongs to the people. Furthermore, the people’s right to distribute literature on the courthouse steps is a right as old and fundamental as America itself.

An eloquent and passionate articulation of this position, by Judge Andrew Napolitano, can be viewed on YouTube, at http://www.youtube.com/watch?v=MetUKQqXO-o.

2) Whether such an attempt to proscribe free speech arose only in response to a particular pet issue of the judge. In this regard the specific free-speech matter being proscribed is important. Asked differently, was this particular message unfairly targeted for regulation?

We cannot know— or at least, I do not know— whether the judge would have attempted the same type of constraint with regards to another issue— or whether he ever has. Let us imagine, for example, that someone had been distributing flyers promoting the opposite message than that being promulgated by Mrs. Heicklen and Schmidter: namely, that the judge’s instructions should be regarded as sacrosanct. Should we think that this type of challenge would have even arisen under that circumstance?

Let us remember that Judge Perry originally also took Mrs. Heicklen and Schmidter to task for photographing the courthouse: an admonition so unreasonable and indefensible that we may fairly assume tyrannical motives for the judge, if that has any bearing on this matter-- as I believe it does. Such tyranny must not be enabled.

Even thought that charge is no longer on the table, I bother to argue against it anyway. Again I say: we the people own the courthouse, and we are permitted to photograph it.

Lest you think I speak ignorantly, I am aware of the prohibitions against “commercial photography” in such locales. Fortunately prohibitions against commercial photography do not exist to be defined and enforced by the whim of any police officer who might assert that since he cannot know whether or not photography is for commercial purposes that all photography should be banned... For we see that the National Park Service, for one, has clarified the matter, by specifying the types of photographic behavior that can be regulated, while providing an explanation of why: that it is only photography that calls for additional equipment, such as lights, trucks, models etc.— i.e. encumbrances which might interfere with another’s recreational experience— which may be regulated.

Otherwise, such a prohibition neither respects nor serves the public interest. So the question is: why did Judge Perry call for a prohibition on that? Judge Napolitano has an answer. I aver that it is Judge Perry’s contempt that is really on trial here.

3) Whether the corralling of Mrs. Heicklen and Schmidter to a special “zone” unfairly rendered their message itself ineffective.
In view of the fact that a proscription for comportment exactly opposite to that which the defendants championed is routinely promoted inside the courtroom, then the immediacy of defendant’s message is unlike that of any other message which might be promoted on a courthouse steps. Their message spoke directly to what they saw as a wrong being per- petrated inside the adjacent courtroom, where the very people not aware of the “power” of nullification are being targeted for jury duty. Therefore the “courthouse steps” is exactly the right place to promote this message. In that it is unlike all others messages.

Remember that the need for such demonstration can be rendered moot if the courts fall into line with the public interest and the intentions of our forefathers by notifying prospective jurors of their power of nullification. So the court is responsible for creating the type of climate in which this protest has to occur.

4) Whether it is consistent with the American disdain for Monarchy, to have the person who forbids conduct pass judgment on its transgressors too, without recourse to a jury.

... especially given that the literature being distributed—and squelched— speaks to exactly that theme. The defendant calling for fully-informed juries cannot even get a compromised jury to judge his guilt for having raised that issue to begin with. This is akin to a legal tautology, in which the defendant cannot win. Thus the outrage.

5) I assume that additional arguments about jury nullification itself need not be made here, as to my understanding, the absurd charge of jury tampering is not on the table.

That being said, I have included a copy of my year-and-a-half old letter to the Honorable Kimba Wood, U.S. District Judge in New York, who not only ruled essentially as I urged, but who later send me a personal letter complimenting me on my argument.

Truly Yours,

John R. Burton