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
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
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
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.
John R. Burton