CASE NO.: 5D11-2588,  11-3036







    The Appellant, pursuant to Fla. R. App. 9.210(a), files this AMENDED initial brief of this appeal from the Circuit Court, Ninth Judicial Circuit, in and for Orange County, Florida, on behalf of: MARK SCHMIDTER and JULIAN HEICKLEN.

Respectively submitted,

 424 E. Central Blvd #307
Orlando, FL 32801-1923
P: (407) 395-4111
F: (407) 396–4032

By: (signature of Adam Sudbury)
Florida Bar No. 783951

TABLE OF CONTENTS and TABLE OF AUTHORITIES    (in original, but omitted here for simplicity)


    The Appellants, MARK SCHMIDTER ("SCHMIDTER") and JULIAN HEICKLEN ("HEICKLEN") appeal from the following judgments and sentences: and from the following sentences:

    (a) As to SCHMIDTER, judgments of convictions rendered on July 26, 2011, on two counts of indirect criminal contempt of court and concurrent sentences of of 141 and 151 days incarceration in the Orange County Jail and fines of $250 for each conviction together with court costs.

    (b) As to HEICKLEN. judgments of convictions rendered on September 1, 2011 on four counts of indirect criminal  contempt of court and concurrent sentences of 145 days incarceration in the Orange County Jail and a single fine of $250 together with court costs on all counts.

    The foregoing cases on appeal were consolidated by this Court's order of February 16, 2012 for purposes of appeal due to the similarity of the facts and legal issues to be considered and ddtermined herein.

    At the trial which occurred on July 26, 2011, Appellant SCHMIDTER was represented by the undersigned attorney, ADAM H. SUDBURY.  On the trial which occurred on September 1, 2011,  Appellant HEICKLEN appeared pro se.  Both Appellants were granted supersedeas bails after there respective trials and are currently at liberty pending final determination of this cause on appeal.

    References to the Record on Appeal shall be as follows: "R-Sch" indicates a reference to the index to the appellate record in case number 5D11–2588.  "R–Hei" indicates a reference to the index to the appellate record in case number 5D11–3036.  "T–Sch" indicates a reference to the trial proceedings which occurred before the Honorable Belvin Perry, Jr. on July 26, 2011 (the "Schmidter trial").    "R–Hei" indicates a reference to the  trial proceedings which occurred before the Honorable Belvin Perry, Jr. on September 1, 2011 (the "Heicklen trial"). "E–Supp" indicates a reference to the supplemental index to the record (evidence and exhibits) on appeal in case number 5D11–2588.

    This case involves the validity and enforcement of three judicial administrative orders enacted and rendered in the year 2011 by the chief judge of the Ninth Judicial Circuit.


    Administrative Order No. 2011–03, signed and effective January 31, 2011 is styled "ADMINISTRATIVE ORDER GOVERNING EXPRESSIVE CONTACT TOWARD SUMMONED JURORS, ORANGE AND OSCEOLA COUNTY COUNTIES" ("the Expressive Conduct Order").  (R–Hei at 12; R–Sch at 17.)  The order states in relevant part:

[t]he dissemination of leaflets and other materials to summoned jurors containing or pictorial information tending to influence summoned jurors, as well as approaching a summoned juror for the purpose of displaying a sign to, or engage in oral protest, education or counseling with information tending to influence summoned jurors on any matter,  question, cause, or proceeding which may be pending, or may by law be brought, before him or her as such juror, shall be prohibited on the (Orange and Osceola courthouse complex) grounds.

This order further states that "[a]nyone who is observed {violating the order} . . . may face indirect contempt of civil court proceedings."

    Administrative Order 2011–07, signed and effective May 4, 2011 is styled ADMINISTRATIVE ORDER GOVERNING DESIGNATED PUBLIC SPEECH AREAS ON THE MAIN ORANGE COUNTY COURTHOUSE COMPLEX GROUNDS" (collectively with Order No. 2011–07–01 "the Public Speech Orders"). (R–Hei at 4.)  The order states, in relevant part:

It is prohibited for any person or group to engage in any typed of first Amendment activities within the main Orange County complex grounds, unless the first Amendment activities occur within a designated Exempt Zone, as defined herein.

This order further states that anyone who is observed [violating the order] . . . may face civil contempt court proceeding."

    The only material difference between Order No. 2011–07 and 2011–07–01 is that the former was enacted with an expiration date of July 15, 2011 and the latter made the provisions of the former permanent.  Both orders were enacted for the same purpose,  proscribe the same conduct and behavior, and contain near identical language.


    The Appellants, SCHMIDTER and HEICKLEN, are both active members or supporters of a national organization known as the Fully Informed Jury Association ("FIJA") (http// FIJA is an organization engaged in educating the public about the jury system by distributing literature at courthouses across the country to potential jurors. (R–Sch, 71–75.)  FIJA's mission is to educate the public about their rights as jurors "that the judge won't tell you." (R–Hei at 23–4.)  At its essence, FIJA's mission is to promote awareness about the "jury pardon," or the de facto ability of jurors to nullify a provision of law they deem to be immoral by acquitting criminal defendants tried thereupon.  (See generally E–Supp, State's Exhibit 1.)  The pamphlet handed out by SCHMIDTER and HEICKLEN on the courthouse grounds explains FIJA, its mission, and its beliefs. (Id.)

        Specifically, FIJA literature includes such statements as:

*. . . judges only rarely 'fully inform' jurors of their rights, especially the right to judge the law itself and vote on the verdict according to conscience.

* Too often, jufors who try to vote their consciences are talked out of it by other jurors who don't know their rights, or who believe they 'have to' reach a unanimous verdict because the judge said that a hung jury would 'unduly burden the taxpayers.'

* It is precisely opinions, wisdo, experience and conscience that we depend upon jurors to refuse to mindlessly follow the dictates of a judge or of bad law.

* So, when it your turn to serve, be aware: 1. You may, and should vote your conscience; 2. You cannot be forced to obey a 'juror's oath'; 3. You hve the rifht to 'hang' the jury with your vote if you cannot agree with other jurors!

* BE ACTIVE!  Tell others what you know about jury veto power!

* Before a jury reaches a verdict, each member should consider: 1. Is this a good law?  If so, is the law being justly applied? 3.  Was the Bill of Rights honored in he arrest? 4. Will the punishment fit the crime?

(R–Hei at 23–4; E-Supp, State's Exhibit 1.)  These statements are all contained in literature by organization members, supporters, or concerned citizens at various courthouses across the country, including until recently the Orange County Courthouse in Orlando. (E-Supp, State's Exhibit 1.)  The material distributed is considered by all to be general in nature, and is not designed to target any specific case or matter. (T-Sch. at 37–8.)  At no time was any investigation into suspected jury tampering opened concerning the conduct of Appellants SCHMITER or HEICKLEN. (T–Sch at 34–5.)

    All of the FIJA material, and SCHMIDTER and HEICKLEN' activities, are part of a national political campaign and considered political speech. (T–Sch at 107–8.)


    Although Appellant Schmidgter is not a "paid up member" of FIJA (T–Sch at 71), he considers himself affiliated with organization's mission (Id.) and purchases the FIJA  flyers at his own expense (Id,).  SCHMIDTER became involved with FIJA as a result of his interest and concern about the high number of individuals incarcerated in federal prisons for nonviolent crimes.  (R-Sch at 72.)  After studying FIJA (and other organizations and materials), in September 2010 SCHMIDTER decided to dedicate his time and energy promoting the FIJA message to the public. (Id. At 72, 74.)

    In the beginning,  (Sept. 2010), SCHMIDTER and others engaged in promoting the FIJA message "were just another person [sic] petiti.oning the government.  We were just like everyone else that happened to be around with a flier [sic] or petition or anything." (R. Sch at 74.)  From September 2010 to January 31, 2011, SCHMIDTER would arrive at the Orange County Courthouse at approximately 7:25 A.M. prior to the courthouse doors opening, and hand out the FIJA flyers until about 8:45 A.M. "when the traffic from the parking garage slows down." (R–Sch at 75.)

    Prior to January 31, 2010, SCHMIDTER would begin handing out the FIJA flyers at the main courthouse doorway, and once it opened he was instructed by court deputies to relocate to a position that did not obstruct the flow of traffic into the courthouse.  (R–Sch at 76.)  SCHMIDTER's preferred location after the courthouse door opened was on the sidewalk that leads from the courthouse garage to the main courthouse entrance. ,(Id.)
    On January 31, 2011, as a result of Ninth Circuit Administrative Order No. 2011–03, SCHMIDTER ceased his activities to determine whether or not he could legally continue to hand out the FIJA flyers. (R–Sch at 77–8.)  Based upon his independent research into the matter (which included review of a circuit judge's order concerning FIJA out of the Fifth Judicial Circuit in and for marion County – see E–supp, Defense Exhibit 2), SCHMIDTER determined that Order 2011-03 did not apply to his activities, or evenif it did, it violated the First Amendment.

    In the spring of 2011, SCMIDTER resumed his activities at the Orange County Courthouse.  In about May-June, 2011, SCHMIDTER was handed Order 2011–07 which prohibited "First Amendment activities" except in designated zones. (T–Sch at 82–3.)  Order 2011–07 reads, in pertinent part: " It is prohibited for any person or group to engage in any type of first Amendment activities within the main courthouse complex grounds unless the First Amendment activities occur within the designated exempt zones as defined herein." (T–Sxh at 83.)  Based on the imminent commencement of the Casey Anthony trial, SCHMIDTER believed that the "Fisrt Amendment activites" referenced in the order were in fact the planned protests and demonstrations that were expected to occur at or around the Orange County Courthouse. (T–Sch at 84.)  Regardless SCHMIDTER that the order could not possibly have meant to ban all activities described in the First Amendment to the U. S. Constitution except in the designated zones. (Id.)

    However due to the vagueness of the language in the order, and applying his own interpretation of its application, SCHMIDTER did not believe that the prohibition of "First Amendment activities" applied to his own conduct of handing out small handbills to passersby. (Id.)

    Copies of Administrative Orders 2011–03 and 2011–07 were served onSCHMIDTER by Deputy Ray Schulte of the Orange County Sheriffs Office in or about May 2011.  On June 29, 2011, Lieutenant Carlos Espenoza, Orange County sheriff's Office (ESPENOZA) made contact with SCHMIDTER who was distributing FIJA materials on the courthouse grounds. (T–Sch at 52.)  ESPINOZA instructed SCHMIDTER to move his operation to the designated free speech zones. (Id.)   When SCHMIDTER refused, ESPINOZA informed him that if he did not comply, he would be placed under arrest for his behavior. (T–Sch at 54.)  For handing out FIJA flyers to passers-by, SCHMIDTER was arrested by ESPINOZA on June 29, 2011.  (T-Sch at 54–5.)  SCHMIDTER was tried by bench trial on July 26, 2011, on one count of violating Order 2011–03 and on one count of violating Order 2011–07.

    Appellant HEICKLEN is considered by FIJA activists to be a senior mentor of those who promote the organization's cause. HEICKLEN is eighty years old and has taken up the "Fully Informed Juror" and the cause of freedom of speech from his retirement from instructing on the subject of chemistry as a uni ersity professor. (T–Sch at 74' T-Hei at 67.)  HEICKLEN, who believes deeply in FIJA's mission, has traveled the country extensively on behalf of the FIJA cause as well as the right to publicly advocate the FIJA message. (See generally T-Hei at 49-54.)  Prior to february 2011, HEICKLEN was in fact formally a member of FIJA but by mutual agreement, his membership was canceled and his dues returned. (T-Hei at 28.)

    HEICKLEN has traveled to 38 federal courthouses across the country to distribute FIJA literature. (T-Hei at 50.) HEICKLEN has also visited 8 county courthouses to distribute FIJA literature. (T-Hei at 52.) HEICKLEN is viewed by others in the activist circles as a person willing to go beyond commonly accepted boundaries for the cause of freedom of speech. Accordingly, when SCHMIDTER has concerns about the Expressive Conduct Order and the Public Speech Order, he  called Heicklen for assistance. (T–Sch at 80.) HEICKLEN assisted SCHMIDTER and others involved in the FIJA distribution activities at the Orange County Courthouse on several occasions. (T-Sch at 81.)
    One such occasion that HEICKLEN was distributing FIJA literature at the Orange County Courthouse was on August 18, 2011.  According to Deputy sheriff Ray Schulte ("SCHULTE"), HEICKLEN was served with copies of Orders 2011–03 and 2011–07–01 and informed of their contents on that day.  (See grnrtslly T–Hei at 19-23.)  On August 22, 2011, according to several witnesses who testified at the Heicklen trial, HEICKLEN appeared upon the Orange County Courthouse grounds to distribute FIJA literature.  (T–Hei at 8–18.)  He was observed by court deputies distributing literature to individuals summoned for jury duty outside of the designated "Free Speech Zones."  (T-Hei at 19–40.)  HEICKLEN was arrested on orders to show cause for two counts of violating Order No. 2011–03 and on two counts of violating Order No. 2011–07–01 (one count each for his activities on August 18 and 22, respectively.

    HEICKLEN was arrested at the Orange County Courthouse and brought before the Honorable Belvin Perry, Jr. for arraignment on the same day. HEICKLEN declined to speak at his arraignment, and as such was incarcerated at the Orange County Jail without bail or appointment of counsel from the date of his arrest until the trial on September 1, 2011. (T-Hei at 2–4.)

    On September 1, 2011, HEICKLEN was transported from ghe Orange County Jail to the Orange County Courthouse where a bench trial was conducted by the Honorable Belvin Perry, Jr., Circuit Judge. (See generally T–Hei.)  At no time during the course of the proceedings was HEICKLEN informed of his right to be represented by counsel, whether privately retained or court-appointed. (T–Hei at 56.)  In addition, while at the jail HEICKLEN was denied access to materials necessary to prepare a legal defense to the charge, or a petition for habeas corpus as he repeatedly requested of jail officials and in various correspondences to the trial court. (T–Hei at 42.) Moreover,  jail personnel confiscated and destroyed HEICKLEN's legal documents related to the foregoing case shortly after his arrest.  (T–Hei at 43, 47–8.)

    HEICKLEN was arraigned on the same day as his arrest. (T–Hei at 1–3.)  At his arraignment, HEICKLEN was never informed of his right to counsel, or offered the assistance of counsel during the proceedings, as evidenced by the following excerpt of the trial transcript:

THE COURT: You brought up the issue of bond and why that was not taken care of.  If you can recall the day that you were taken into custody and brought into this very same courtroom, I talked with you about appointment of counsel.  You would not say anything.

MR. HEICKLEN: Correct.

THE COURT:  I raised the issue and was going to raise the issue of bond.  You would not say anything.

 MR. HEICKLEN: Correct.

THE COURT: So you chose not to avail yourself of that opportunity, and that's why no bond was set and that's why we couldn't even get into the issue of counsel.

(T–Hei at 56 (emphasis supplied).) At no time during the course of the proceedings did the trial judge appoint stand-by counsel, the Public Defender, or attempt to conduct a Faretta inquiry. (See generally T–Hei.) Indeed, instead of conducting a Faretta inquiry of inquiring into the Defendant's desire or need for appointed counsel at the beginning ofthe trial, the court instead re-arraigned the Defendant on the charge and began the trial. (T–Hei at 47.) The extent of the trial court's inquiry into the Defendant's ability to self-represent or need or desire for court appointed counsel wasas follows:

THE COURT: Mr. Heicklen, we are here on an order to show cause.  We have previously arraigned you on this.  Do you intend to defend yourself? The last ime when you were present when I arraigned you on these charges you declined to say anything.

MR. HEICKLEN: That's right.  I was using my first amendment right to avoid incrimination, since I was not prepared to say anything.

THE COURT: Okay. All right. Are you prepared to represent yourself, sir?

MR. HEICKLEN: Yes, I am.

THE COURT: Okay. It will probably be easier if you sit,  Mr Heicklen, at counsel –– one of the counsel tables.

(T–Hei at 4.)  No further inquiry into the issue of the Defendant's right to be represented by counsel.

THE JURORS: Several persons summoned to the Orange County Courthouse for jury duty were called as witnesses in both the Schmidter Trial and Heicklen Trial.

    Mr. Christopher Torres ("TORRES") testified in the Schmidter Trial that he was called for duty. (T–Sch at 13–19.) TORRES testified that he received a pamphlet from SCHMIDTER, but that "briefly I skimmed over it.  When I saw that it had nothing to do with my jury summons, I discarded it." (T–Sch at 14.)  In addition, TORRES stated that he was not influenced in any way by the document. (T–Sch at 17.)  Ms. Edith Braddy ("BRADDY") also testified in the Schmidter trial, And stated that she did not believe the pamphlet she received from Schmidter was a court order and that she would obey any order given to her by a judge. (T-Sch at 23–4.) Ms. Irving Gerena ("GERENA") testified that when SCHMIDTER offered her the FIJA pamphlet, she felt that she was free to accept it or reject it or read it or not read it, as she saw fit. (T-Sch at 27.)  She also testified that she has the ability to make up her own mind about things, even if it is someone else's opinion that she is informed of. (Id.)

    None of the jurors in the SchmidterTtrial were actually influenced by the materials distributed by SCHMIDTER. (T-Sch at 38–9.)


    SCHULTE, who was called as a witness for the Appellee, testified that he is in chargeof the "Intelligence Section" at the Orange County Courthouse, which is a part of the "Court Security Section." (T-Sch at 34. 2011–03 and 2011–07) SCHULTE testified that he was charged with, and performed, the duty the duty of enforcing Administrative Orders with regard to FIJA, SCHMIDTER, HEICKLEN, and other activists in the spring to summer of 2011. (T–Sch at 28–33.)

    Administrative Orders 2011–03 and 2011–07–01 prohibit "any type of First Amendment activities within the main courthouse complex or complex ground, unless the First Amendment activities occur within a designated Exempt Zone, as defined herein." (R–hei at 6; R–Sch at 36; T–Sch at 40.) The terms "First Amendment activities" is not further defined in the text of either administrative order. (Id.)

    SCHULTE, when asked to define "First Amendment activity" included expression of opinion from one person to another person. (T–Sch at 40.) However, SCHULTE then stated that such activity, even though it was governed by the Public Speech Orders, was not subject to the Public Speech Orders. (Id.) SCHULTE stated that if he observes

something that I believe could constitute a violation of [the Public Speech Orders], what I would do is approach the person who is possibly violating it, provide them a copy of both orders and inform them that what they must do is take their activity to either one of those zones or to the outside of the courthouse.

(T––Sch at 44–5.)  SCHULTE acknowledged that "First Amendment activities" include activities related to: (a) establishment of religion; (b) free exercise of religion; (c) freedom of speech; (d) freedom of the press; (e) freedom to peaceably assemble; and (f) freedom to petition the government for redress of grievances. (T–Sch at 42.)  SCHULTE was unable to provide any additional details about the specific conduct prohibited.


    Ninth Circuit Administrative Order 2011–07 and 2011–07–01 describe the designated free speech zones which are the only places wherein a person at the Orange County Courthouse can engage in 'First Amendment activities.' Verbal descriptions of the free speech zones are included within the administrative orders; however, Defense Exhibit 1 is a demonstrative exhibit marked by SCHMIDTER and SCHULTE which best visually delineates the free speech zones and their effect on SCHMIDTER and HEICKLEN's pamphleting operations. (T–Sch at 86–93, 46–51; E–Supp, Defense Exhibit 1.)


    The question before this Court is whether multiple convictions for indirect criminal contempt for violating three separate administrative court orders which regulate the content and manner of expressive behavior at the Orange County Courthouse can withstand appellate scrutiny. The Appellants contend that the convictions should be reversed in all regards, for the following reasons:

    First, the Expressive Conduct Order (2011–03 is an unconstitutional content-based regulation of speech which fails strict scrutiny both facially and as-applied. The order actively and expressively discriminates against expressive conduct favoring one side or another in cases in litigation.  In addition, as applied in this case, the order was enforced specifically becaus the trial court disagreed with the message it conveyed.  Accordingly, the convictions should be reversed.

    Second, the Public Speech Orders (2011–07 and 2011–07–01) are unconstitutional time, manner, and place regulations of expressive conduct. The orders fail the content-neutrality prong of the test because of the specific manner in which they are enforced.  In addition the orders are not narrowly tailored because they burden substantially more expressive conduct than what is necessary to serve their purposes, and a substantial portion of the expressive conduct they prohibit does not advance the purpose of the orders.  Lastly the orders fail to leave any meaningful alternative for the Appellants to communicate their message.  Accordingly, the convictions should be reversed.

    Third, all three administrative orders (2011–03, 2011–07, 2011–07–01) are unconstitutionally vague and overbroad.  No reasonable person can be deemed to be put on notice of what is permitted or prohibited under the language of the order which bans "First Amendment activities."  Furthermore the orders encompass substantially more than what they are intended to prohibit, and leave the determination of what is considered prohibited in the hands of the executive or for later courts to determine.  accordingly, they are constitutionally vague and overbroad.  The convictions should therefore be reversed.

    Fourth, HEICKLEN was denied his right to counsel guaranteed by the United States and Florida constitutions.  The trial court failed to conduct a Faretta inquiry as required by law, when HEICKLEN indicated that he would self-represent. As such, HEICKLEN's conviction must be reversed.

    Fifth, the Appellants were denied a right to trial by jury.  Although existing law does not recognize a right to trial by jury for contempts punished for six months imprisonment or less, the Appellants request an extension of existing law to guarantee aright to trial by jury for all indirect criminal contempts, punishable by any punitive term of imprisonment.

    Sixth, the appellants were denied due process of law because the administrative orders being enforced against them specified expressly that criminal contempt was the remedy for a violation. This express statement of the remedy excludes proceedings for criminal contempt.  Accordingly, the convictions for indirect criminal contempt should be reversed.


    This case is not the first time that a Florida appellate court reviews the propriety of distributing a pamphlet to prospective jurors purporting to describe the jury's role in our legal system.  In Ferrara v. State, the Florida Supreme Court was asked to determine whether a pamphlet directly to summoned jurors with their summons constituted an improper influence upon the eventual empanelled jury. 101 So. 2d 797 (Fla. 1958).

    The material in Ferrara is similar in content and purpose to the leaflets distributed by SCHNIDTER and HEICKLEN.  Both pamphlets sought to summoned jurors of their rol in our constitutional democracy.  Both pamphlets sought to educate jurors about their rights and responsibilities. Both pamphlets made it clear that they should not be brought into the jury room.  Neither pamphlet conatins any "statement that could be dignified as charges on questions of law." Id. at 801. Most importantly, both pamphlets in their own way implore jurors "to do justice that at the end of his service, his conscience will be clear and and his citizenship unsullied."Id. at 799. Ultimately both pamphlets were in essence the quintessential exercise of the American right to free speech guaranteed by the First Amendment to the United States Constitution.

    Other than the very specifics of the message delivered, the only true material difference between the 1958 'Handbook for Trial Jurors' and FIJA's 'Your Jury Rights: True or False?' is that the former was authored by the Hillsboro County's sitting judges and delivered to each summoned juror together with their jury duty summons.  The latter, on the other hand, was authored by a private organization and deemed judicially unpopular.  for exercising their First Amendment rights, the judges of the Thirteenth Circuit were lauded by the Florida Supreme Court.  by comparison, for exercising thr exact same constitutional rights, FIJA activists were shackled and jailed.

    Since the trial court made no findings of fact, and there is no disagreement in the evidence on appeal, the standard of review on all points on appeal is de novo.


    The question before this court is whether Administrative Order 2011–03 is both facially valid and valid as-applied under the First Amendment to the United States Constitution and under Article I, Section 4 of the Florida Constitution.

    The United States Supreme Court has clearly outlined the very specific circumstances where the government can outlaw speech based on its content. See generally Brown v. Entertainment merchants Assoc., 131 S. Ct. 2729 (U.S. 2011). "As a general matter, . . . government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Ashcroft v. ACLU, 535 U. S. 564 (2002).  The only recognozed exceptions are obscenity, incitement, and fighting words.  Brown, 131 S. Ct. at 2733. Those are the only exceptions.  None of the exceptions apply on this case.

    " The principal inquiry in determining content neutrality . . . is whether the government has adopted a regulation of speech because of disagreement with the message it conveys."  Ward v. Rock against Racism, 491 U. S. 781 (1989).  Where government regulation of speech is content-based, it is presumptively invalid unless the government can demonstrate that it passes strict scrutiny.  City of Ladue v. Gilleo, 512 U. S. 43, 59 (1994).  Laws subjected to strict scrutiny uner the First Amendment are determined "constitutional only if it conxgitutes he least restrictive means of advancing a compelling government interest." KH Outdoor, LLC v. City of Trussville, 458 F. 3d 1261 (11th Cir. 2006).

    Administrative Order 2011–03 plainly prohibits the distribution of information to jurors or prospective jurors on the basis of content of the information.  That is, the purpose of the prohibition is to prevent the "dissemination of all leaflets and other materials to summoned jurors containing written or pictoral information tending to influence summoned jurors." The prohibition is not designed to 'keep the peace' or guarantee access to courthouse facilities against unruly protesters. See United States v. Grace, 461 U. S. 171 (1983) (banning the distribution of leaflets on Supreme Court grounds invalid under First Amendment).

    The following exchange between HEICKLEN and the trial court reveals beyond question that this administrative order was designed to, and was and is being enforced as a mode of regulating content of speech:

THE COURT: Have you ever thought about lobbying the legislature to make it a law to give tha instruction that you just stated?

MR. HEICKLEN : They don't have to make it a law. It is there. The juy is a separate entity of government, and it can do what any other entity can do.  It has the option, if it feels it's appropriate, to not uphold the law in that situation; just like a police officer, a judge, a prosecuting attorneu, the governor, or president. Or the congress can repeal the law.

THE COURT: Expect [sic] under the current state of law, they're right.  they can do that. But we can't tell them they can.

MR. HEICKLEN: Oh. you can't tell them?  Maybe that's so.  But I can.  I can tell them that.

(T–Hei at 62–3 (emphasis supplied).) At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence." Turner Broad. Sys. v. Fed. Communications Comm., 512 U. S. 622, 641 (1994).  The Florida Supreme Court  recognized this principle when it determined that a panel of Florida state judges acting outside of their official judicial role was permitted to send a 'juror handbook' with each and every jury summons delivered in Hillsboro County. Ferrara v. State, 101 So. 2d 797 (Fla. 1958).

    In the Schmidter trial, the trial court also made it abundantly clear that the purpose of the restrictions was to regulate the content of the Appellants' speech.  In addressing SCHMIDTER prior to pronouncing sentence, the judge said:

If you wanted to pass [the FIJA material] out to anybody, that was your business, that was your right as a citizen, the right of frre speech to passit out, but when you were passing something out that told jurors that they had a right to disregard their oath, they had a right to not follow the law, they had a right that if they personally disagreed with the law, and ghey could do whatever they wanted to do, then there's a problem.

(T–Sch at 121–2.)  The fact that the target of the speech happened to be a summoned juror does not place this case with any recognized exception under the First Amendment. See e.g., Ferrara, 101 So. 2d at 797.  SCHMIDTER, HEICKLEN, and FIJA activists are engaged  in a national campaign to educate the public on their specific viewpoint on the role of the jury in our political system. (See T–Sch at 111–2.)  The fact that these activists distribute their literature at courthouses and to individuals summoned for jury duty should not be surprising and is completely logical.  The State cannot point to any factor that under existing law should result in any lesser degree of protection being afforded to the Appellants' particular brand of political speech.

    The State may attempt to argue that the Expressive Conduct Order does not regulate expression but rather is a permitted regulation of corruption. While jury tampering (see § 918.12, Fla. Stat.) is and should be illegal as a form of corruption, disseminating admittedly unspecific information about jury service does not constitute, nor does it come close to constituting, corruption or tampering under the statute.  This was confirmed by SCHULTE, who testified that throughout the entire relative time period at issue in this case, he never suspected nor did he investigate jury tampering. (T–Sch at 34–35.)

    Indeed, tampering with a jury is already a third degree felony under state statutes.  It is a crime whether it tales place at the courthouse or whether it takes place in a convenience store. See Nobles v. State, 769 So. 2d 1063 (Fla. 1st DCA 2000). there is no rational purpose to administratively or by court order prohibit a practice that is already a felony under state law. All of the sworn deputies at the courthouse may arrest any person suspected of jury tampering without the need for a judicial order to show cause. Accordingly it is clear that Order No. 2011–03 is specifically designed to restrict practices that do not rise to the level of corruption or tampering.

    On several occasions and in both proceedings, the trial court judge, the Honorable Belvin Perry, Jr., who is also the chief judge of the Ninth Circuit, made it clear that these administrative orders were being enforced againsT SCHMIDTER and HEICKLEN because of the message they were attempting to convey. (T–Hei at 62–3; T-Sch at 121-2.)  Accordingly, since Administrative Order 2011–03 is a transparentley invalid content-based speech restriction, a conviction for criminal contempt of court based thereon cannot be upheld. (Sandstrom v. State, 309 Sc. 2d 17 (Fla. 4th DCA 1975).

    The question is whether Administrative Orders 2011–03, 2011–07 and 2011–07–01 are both facially are valid and valid as-applied under the first Amendment to the United States Constitution and under Article I, Section 4 of the Florida Constitution.

    As a general proposition, it is true that the government may limit expressive conduct, even in a public place, if the time, place, and manner restriction is without regard to the content of the speech and is objectively reasonable under the circumstances. Schenk v. Pro Choice Network of western New York, 519 U. S. 357 (1997).  Provided that the attempted regulation is contnet-neutral, an intermediate scrutiny test is applied.  "The restrictions must be justified without reference to the contents of the regulated speech, be narrowly tailored to serve a significant governmental interest, and . . . leave open ample alternative channels for communication of the information. Daley v. City of Sarasota, 72 So. 2d 124, 126 (Fla. 2d DCA 2000).

    It is without question that pamphleteering and/or the distribution of handbills or other literature constitutes expressive activity which is afforded the full panoply of protections under the First Amendment.  Schneider v. State, 308 U. S. 147 (1939); Lovell v. Griffin, 303 U. S. 444 (1938), Talley v. State of California, 362 U. S. 60 (1960).

    "A sidewalk, although specifically constructed for pedestrian traffic, also constitutes a public forum." Int'l Caucus of Labor Comm. v. City of Montgomery, 111 F. 3d. 1548 (11th Cir. 1997); Osmar v. City of Orlando, No. 6:12–cv–185–orl–DAB, slip op. at 3 (M. D. Fla. April 13, 2012) (" It is well established that traditional public fora include sidewalks, streets, and parks that the public has historically used for assembly and general communication").

    Where the government attempts to regulate expressive conduct in a public forum, the first Amendment will only tolerate time, place and manner restrictions that are: (1) content neutral; (2) narrowly tailored to serve a significant governmental interest; and (3) leave open alternative channels for communication of the information.  Int'l Caucus of Labor Comm., 111 F. 3d at 1551.

A.    Administrative Orders 2011–03, 2011–07 and 2011–07–01 Are Not Content Neutral Facially or As-Applied And Are Thus Unconstitutional Under Strict Scrutiny.

    SCHMIDTER and HEICKLEN were engaged in leafleting or pamphleteering on a public sidewalk. Accordingly, the activity regulated in this case is expressive conduct in a traditional public forum.  The question then is whether the Public Speech Orders mdet the time, place, and manner test on their face or as-applied in this specific case.  It is clear upon analysis that the Public Speech Orders fail and as such, unconstitutionally infringe upon the First Amendment.

    The first question is whether the Public Speech Orders are content neutral–both facially and as applied. An examination of the language of the orders reveals that in fact the Public Speech Orders are not facially content neutral. The language of the preamble to the operative language in each order plainly describes the purpose for their enactment; the orders are designed to suppress expressive conduct which advocates for or against one side of a case in litigation: i. e., speech that would result in an atmosphere "of actual or perceived partiality" at the Orange County Courthouse. (R–Sch at 21); see, e.g., State v. Catalano, 60 So. 3d 1139, 1145 (Fla. 2d DCA 2011). A pre-requisite for the validity of time, place, and manner regulation is that the regulation be absolutely content-neutral. The government may not in any way, shape, or form show partiality or favoritism towards one type of speech over another.  KH Outdoor v. City of Trussville, 458 F. 3d 1261 (11th Cir. 2006).  For this reason, the DCA determined that a Florida statute which restricted the decibels of sound that could be emitted from a motor vehicle but, in an effort to be 'extra careful,' made a special statutory exemption for political speech, was invalid. Catalono 60 So. 3d at 1145.

    In addition, the order fails the content neutrality test when it is considered in the context of this specific case.  The Public Speech Orders were executed in anticipations of demonstrations and protests concerning the Casey Anthony trial whuch was scheduled to occur, and in fact did occur, at the Orange County Courthouse in the summer of 2011.  It is probable that based on the parameters and location of the 'free speech zones,' the Public Speech Orders were written to control gatherings of potential unruly demonstrators or to prevent potentially unruly demonstrators or to prevent potentially disorderly behavior from occurring in close proximity to the courthouse e antrance.  The testimony at trial was consistent throughout: neither SCHMIDTER nor HEICKLEN acted in a disorderly manner or in any way obstructed access to the courthouse. (T–Sch at 26-7, 38.)

    In fact the trial judge, who is also the chief judge of the Ninth Circuit and the very person who developed and executed all three of the administrative orders in question, very clearly stated in both trials that the reason that these orders were enforced against SCHMIDTER and HEICKLEN was because he (the judge) disagreed with the message the Appellants were attempting to communicate. (T–Hei at 62–3; T-Sch at 60–65.)

B.     Administrative Orders 2011–03, 2011–07 and 2011–07–01 Are Not Narrowly Tailored to Serve a Significant Government Interest.

    Even if the Expressive Conduct Order and Public Speech Orders satisfy the content-neutrality prong of the test, they are nonetheless invalid because they are not narrowly tailored to serve a significant government interest.

    In the federal Eleventh Circuit, courts recognize the power of governments to regulate the types of activities which occurs on public rights-of-way to "ensure the orderly flow of traffic in the streets and at the street corners and the prevention of a partial blockage of pedestrian traffic on the public sidewalks." Int'l Caucus of Labor Comm. v. City of Montgomery, 111 F. 3d 1548, 1551 (1997).  Thu, the stated purpose for Administrative Orders 2011–03 and 2011–07 appear to fall within the legal ambit of  'significance governmental interest."  It cannot be said, however, that the Public Speech Orders are narrowly tailored to further this interest.  'Narrowly tailored' means that the government:

May not impose a regulation that will burden substantially more speech than is necessary to further the government's legitimate interests; nor may the [government] impose a regulation in which a substantial portion of the burden on speech does not serve to advance its goals.

Int'l Caucus of Labor Comm. v. City of Montgomery, 111 F. 3d 1548, 1551 (11th Cir. 1997).  A content-neutral regulation of expressive conduct is constitutional if it furthers the substantial interest for which it was created, does not "burden substantially more speech than is necessary" and "does not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals. "Ward v. Rock Against Racism, 491 U. S. 781,789 (1989): see State v. Montas, 993 So. 2d 1127 (Fla. 5th DCA 2008).

    The purported purpose of the Public Speech Orders are to prevent the disruption of orderly business at the courthouse and/or to extinguish 'perceived' partiality in court proceedings.  ( See generally R–Supp, State's Exhibits 2, 3, and 4.)  It could be argued that the Public Speech Orders appear to advance these goals by providing a delineated zone for demonstrations or protests that would prevent intimidation of jurors or blocking of the courthouse entryways.  However by outlawing all "First Amendment activities" except in those zones, the Public Speech Orders clearly burdens substantially more speech than is necessary and substantialy burdens speech in ways that do not serve to advance its goals. Ward 491 U. S. at 799.

    The term "First Amendment activities" is used in both Public Speech Orders yet is not specifically defined therein.  The factual record at trial reveals, as does a simple reading of the First Amendment that "First Amendment activities" involve substantially more than public demonstrations or protests.  When asked specifically what he understood to be a "First Amendment activity," SCHULTE stated that such included "any type of expression, written, oral, anything of tha nature."  (T-Sch at 40.)  However when given the opportunity to review the First Amendment, he acknowledged that in fact the First Amendment covered six distinct rights: "establishment of religion, free exercise of religion, abridging freedom of  speech, the press, peaceably to assemble and to petition the government." (T–Sch at 42.)

    As written, the Public Speech Orders could be reasonably be understood to preclude any activities related to any right guaranteed by the First Amendment except in the designated zones.  Thus, the orders could be understood to outlaw prayer, public assembly, the verbal expression of ideas or opinions, or indeed any form of press activity.  (See T-Sch at 42–44.)  Theoretically the press could be forced to cover  public court proceedings from  no closer than the sidewalk adjacent to Orange Avenue.  Indeed there is recent evidence that even SCHULTE, charged with enforcing the orders, did not know exactly what conduct was proscribed. (T–Sch at 44.)

Q. And as an agent of the state charged with enforcing the law, any number of these First Amendment rights are prohibited under the order as written, to your understanding?

A. To my understanding it depends on what exactly is occurring and where it's occurring at.

(Id.)  SCHULTE's failure to describe exactly what behavior is proscribed by these orders is reflective of the fact that these orders are not narrowly tailored.  Accordingly this court should dtermine that they fail intermediate scrutiny.

    The Expressive Conduct Order is not narrowly tailored because it prohibits any materials that would tend to influence jurors.  Accordingly, the Order fails the 'narrowly tailored' prong of the intermediate scrutiny test.

c. Administrativ Orders 2011–03, 2011–17 and 2011–07–01 Fail Intermediat Scrutiny Because They Do Not Leave 'Ample Alternative Channels' for Communication.

    Even if the administrative orders are deemed to be narrowly tailored, they must "leave [] open ample alternative channels for communication of the information."Int'l Caucus of Labor Comm. v. City of Montgomery, 111 F. 3d 1548, 1352 (11th Cir. 1997).  See Ward v. Rock Against Racism, 491 U. S. 781, 789 (1989).  None of the orders leave open any alternative channels for communication, let alone 'ample' alternative channels.

   SCHMIDTER testified at trial as to the effect of the Public Speech Orders on his pamphletering activities:

Q.      It seems like you would want to prevent this whole hubbub that we've got here, so what is it           about those (Free Speech Zones) that you wouldn't move there?

A.     Well they are completely ineffective.  For me to get my message across it's all of the jurors         or 90 percent of them parked in the garage because it's free.  The ones that don't are usually             coming in from the front or side.  I would stand to the side and hand out flyers there.

(T–Sch at 90–91.)  essentially in order to communicate his message either to jurors or other passers-by who have business ag the courthouse, SCHMIDTER's preference was to either: (a) walk the line-up of people and hand out flyers prior to or as the courthouse was opening at 7:30 A.M.; and after opening, to (b) stand at the intersection on the sidewalk between the main entrance, the parking garage, and the public defender's office.  Administrative Orders 2011–03 and 2011–07–01, as applied to SCHMIDTER and HEICKLEN, would require them to stand in a location where no pedestrian traffic exists.  The zones are not even on or adjacent to the sidewalk abetting Orange Avenue but are in two non-central locations in the courthouse plaza.  The orders leave no alternative, let alone ample alternative, to the Appellants' attempts at communicating their message.

    In sum, in restricting all speech except in two tiny areas over 200 feet from the courthouse doorway is not a reasonable time, place, and manner restriction under First Amendment jurisprudence, and he conviction be invalidated.


    Administrative Orders 2011–01, 2011–07, and 2011–07–01violate the United States and Florida constitutions becuse they are unconstitutionally vague and overbroad.

    It is difficult to imagine a more vague and/or broad restriction than what is provided in these administrative orders, 2011–07 and 2-11–07–01 in [articular.  The First Amendment to the United States Constitution includes the fundamental freedoms of speech of religion, of the press, and the right to peaceably assemble.  It is nearly impossible for a person to read the 2011–07 and 2011–07–01 order an determine exactly what conduct is prohibited.  See Bouie v. City of Columbia, 378 U. S. 347 (1964).  "To satisfy due process, a penal statute must define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Skilling v. United States, 130 S. Ct. 2896,177 L. Ed. 2d 619 (U. S. 2010).  Order 2011–03 is equally vague and overbroad because it invalidates any communication that could potentially influence jurors.

    "A statute is overbroad when legal, constitutionally protected activities are criminalized as well as illegal, unprotected activities, or when the Legislature sets a net large enough to catch all possible offenders and leaves it to the courts to step inside and determine who is being lawfully detained and who should be set free."  Schultz v. State, 361 So. 2d 416 (Fla. 1979), quoted in State v. Montas, 933 So. 2d 1127 (Fla. 5th DCA 2008); See also Rodriguez v. State 906 So. 2d 1082 Fla. 3d DCA 2004).  "The overbreadth doctrine prohibits the government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process." Ashcroft v. Free Speech Coalition, 535 U. S. 234, 255 (2002).

    No reasonable person can rightly determine exactly what conduct the order here is designed to proscribe.  Assuming that the term "First Amendment activities" is not attended to ban every type of activity elated to a right guaranteed by the First Amendment (See T-Sch at 86), it is impossible to say exactly what is permitted under these orders and what is not. Accordingly it is unconstitutionally vague.  On the other hand, if this order truly seeks to ban any manner or type of speech, religion, or other protected First Amendment activity, it must certainly be unconstitutional as overbroad.

    Schmidter made several attempts by 'trial and error' to dtermine if the orders applied yo his specific type of expressive conduct.  (T–Sch at 97.) He testified that he and his fellow activists rnlisted the assistance of HEICKLEN, a noted First Amendment activist and FIJA supporter, to hand out flyers to see if the orders would be enforced against him. (Id.) When they were met with no enforcement efforts, they believed that their conduct was legal.  See also United States v. Williams, 553 U. S. 285 (2008); United States v. Stevens, 130 S. Ct. 1577 (U. S. 2010).

    Since Administratice Orders 2011–03, 2011–07 and 2011–07–01 are transparently invalid under the vagueness, overbreath, and substantive due process analysis, a conviction for criminal contempt of court based upon these orders cannot be upheld.


    The question is whether HEICKLEN was denied the right to counsel guaranteed by the Sixth Amendment of the U. S. Constitution and Article I, Section 16 of the Florida Constitution.

    "Crimina contempt proceedings are effectively criminal in nature and persons accuse of criminal contempt are as much entitled to the basic constitutional rights as are those accused of violating criminal statutes." Andrews and Walton, 428 (So. 2d 663 Fla. 1983) quoting Aaron v. State, 285 So. 2d 673, 675 (Fla. 1973).  See also Fla. R. Crim. P. 3840.

In an indirect criminal proceeding, an accused contemptor has the right to counsel, including court-appointed counsel, absent a knowing and intelligent waiver of that right.  Stermer v. State, 609 So. 2d 80 (Fla. 5th DCA 1992). If a person elects to self-represent, to satisgy due process requirements, the trial court must conduct a Faretta inquiry pursuant to Faretta v. California, 442 U. S. 806 (1976):

Under Faretta, in order to insure that a decision by a defendant to waive his right to counsel and represent himself 'is knowingly and intelligently' made, the trial court must make an inquiry on the record to demonstrate the defendant's understanding and appreciation of the sriousness of the charges and his capacity for self representation.

Stermer, 609 So. 2d at 82, quoting Fla. R Crim. P. 3111(d). A waiver of the right to be represented  by counsel requires a thorough inquiry into the offer of counsel and the accused's capacity to understand the consequences of a waiver. id. The specific requirements of an offer include an examination into  the accused's "background and experience, his ability to defend himself against the charges, or his mental condition" among others. Id. See also Cooper v. State, 376 So. 2d 1379, 1380 (Fla. 2d DCA 1991).  If an accused indicates a desire to self-represent, the court should "apprise the appellant as to the dangers and dis-advantages of self-representation." Stermer, 609 So. 2d at 82 quoting Miller v. State 485 So. 2d 1346, 1347 (Fla. 5th DCA 1986).

    In this case nothing even resembling a Faretta inquiry was conducted of Heicklen. (T–Hei. at 4–7.)   The only inquiry conducted was as follows:

THE COURT: Okay. All right. Are you prepared to represent yourself sir?

MR. HEICKLEN: Yes, I am.

(T–Hei at 4.) The trial court even stated on the record later in the proceedings that "(I)f you can recall the day that you were taken into custody and brought into this very same courtroom, I talked with you about appointment of counsel . . . that's why no bond was set and that's why we couldn't even get into the issue of counsel." (T–Hei at 56.)

    Plainly, the law requires a more detailed examination than what was conducted. Accordingly, HEICKLEN's conviction should be reversed because the proceedings bdlos violagted his right to counsel guaranteed by the United States and Florida constitutions.


    The question is whether the Appellants were entitled to a trial by jury under Article III, Section 2 of the United States Constitution and Article I, section 16 of the Florida Constitution on charges of indirect criminal contempt.

    Aaron v. State, 245 Sc. 2d 641 (Fla. 1977) reflects the current state of the law on this point. That is, for contempt proceedings wherein the punishment is six months imprisonment or less, there is no right to trial by jury.  However the appellants argue that the current aw should be extended to trials by jury in all indirect criminal contempts where imprisonment is possible for punitive purposes.  The Aaron court dexcribed many of the reasons why juries should not be required for all contempts: "[i]t would bring the right to a jury trial into contempt proceedings in domestic relations matters, trial disruption incidents, violation of injunctive orders, and conduct which interferes with jurors and witnesses and the summary discipline of attorneys." Id. at 643.

    Extending the right to a jury to indirect contempts would place many of these concerns outside the preview of the requirement. The appellants respectively request an extension of existing law to recognize a right to trial by jury in indirect criminal contempt proceedings.


    The question is whether an administrative order which specifies civil contempt as the punishment for a violation cannot thereafter be enforced by criminal contempt proceedings.

    "Without question, anyone facing contempt charges, either criminal or civil, is under threat of imprisonment." Andrews v. Walton, 428 So. 2d 663, 665 (Fla. 1983). While civil cntempt is designed to enforce compliance with former court orders, criminal contempt is designed to punish violations of  court orders or for misconduct.  Kelley v. Rice 800 So. 2d 247 (Fla. 2d DCA 2001). See also Dept. of Children v. R.H., 819 So. 2d 1958 (Fla. 5th DCA 2002) (emphasizing the importance of the distinction between civil and criminal contempt proceedings.).

    As a matter of constitutional jurisprudence, "no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed." United States v. Harris, 347 U. S, 612 (1954). "This court has repeatedly stated that criminal statutes which fail to give due notice that an act has been made criminal before before it is done are unconstitutional deprivations of due process of law. Jordan v. De George, 341 U. S. 223 (2009).

    All these administrative orders subject to these proceedings specify civil contempt as the remedy for a violation. (R-Supp, State Exhibits 2, 3, and 4.) They key factor to this analysis is the difference in an order imposing civil contempt versus an order imposing criminal contempt. A civil contempt order
can be purged, and the contemnor released from incarceration, by complying with the order or requirement being enforced. Kelly, 800 So. 2d at 251. A criminal contempt order cannot be purged and a criminal contemnor must serve the sentence as punishment for his conduct.

    While the undersigned could not find a single authority applying the principle of law stated above to contempt proceedings, this Court should make such a determination. A court order which specifies that disobedience will be met with civil contempt proceedings should not thereafter be permitted to enforce the order by criminal contempt. This akin to a criminal statute which states in the language of the statute that the violation is a misdemeanor being enforced in a later proceeding as a felony.

    Accordingly, the Appellants' convictions should be invalidated on due process grounds.


    At the trial of Mark Schmidter, the judge asked of the undersigned counsel, "Where do we end with free speech? Do we just let everybody pass out whatever they want . . . ?" (T-Sch at 64.) the venerable Learned Hand gives us the answer to this important question:

The First Amendment presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection.  To many this is, and always will be, folly: but we have staked upon it our all.

United States v. Associated Press, 52 F. Supp 362, 372 (S. D. N. Y. 1943) quoted in Osmer v. City of Orlando, No. 6:12–cv–185–Orl–DAB, slip op. at 2 (M. D. Fla. April 13, 2012).

    The underlying prosecutions in this case should not be sanctioned by this Court. The Administrative orders upon which the convictions are based do not comply with the United States or Florida constitutions.  Justice, fairness, and the law all require an outcome in favor of the Appellants in this cause.


that a copy hereof was furnished to MEGAN SAILLIANT, ESQ., Assistant Attorney General, Attorney General's Office, 444 Seabreeze Blvd Ste 500, Daytona Beach FL 32118 by MAIL on this 26th day of June, 2012.


I CERTIFY that the foregoing document complies with the font requirements of Fla. R. App. P.  9.210(a)(2), to wit: computer generated document, double spaced, 1-inch margins, in Courier new 12-point font.


424 E. Central Blvd # 307
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By: (sgned by Adam H. Sudbury)
Forida Bar No. 783951