FREEDOM of speech is not absolute. It is a crime to incite a riot, for instance, as it is to libel or slander someone. In Schenck v United States, Oliver Wendell Holmes noted that even "the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic." Speech has consequences, and if those consequences are demonstrably harmful, speech can be, in certain instances, restricted. I will hold my nose and agree, reluctantly. But even if free speech is not absolute, it ought to be pretty damn close. One might imagine that passing out pamphlets (Pamphlets—made of paper! To read! Just like Thomas Paine! How adorably archaic!) of a political nature is as close to the ideal of constitutionally-protected speech as possible. In New York, however, one would be wrong.

Late last year, federal prosecutors indicted a 78-year-old retired chemistry professor named Julian Heicklen for jury tampering, a misdemeanour that carried a fine and potential jail time of up to six months. They do not allege he influenced any specific juror on any specific case. Instead, his crime was passing out pamphlets in front of the federal courthouse in downtown Manhattan. The pamphlets contained information about jury nullification: which is a juror's right or ability, depending on which side you ask, to vote not guilty regardless of whether the prosecution proved its case if that juror believes the law to be unjust (about which see my post of five months ago; I am still proud of having written what one commenter called "the stupidest, most socially irresponsible, morally and legally indefensible notion ever to grace the pages of The Economist"). Now, Mr Heicklen seems something of a crank: he's smoked marijuana in order to get arrested but does not otherwise smoke; he asked that Muslims be excluded from any jury that tries him because he is Jewish and believes that "Islam preaches death to the Jews"; he has been fined for unlicensed pamphleteering half a dozen times in Manhattan and has also distributed nullification materials elsewhere. But of course, one man's crank is another man's hero, and, anyway, if the odious Fred Phelps has the right to disrupt the funerals of fallen soldiers (and he does), then a thoughtful, harmless guy like Mr Heicklen ought to be able to pass out fliers on the courthouse steps. Again, not in New York. Here he discusses being whisked away without citation four times; by far the creepiest part of which is his having been taken to psychiatric hospitals. There certainly have been regimes that abuse psychiatry and brand anti-government activists crazy, but I did not think I lived in one.

In August, Mr Heicklen's attorneys—or rather, his stand-by counsels; he is representing himself—filed a motion to dismiss for a number of reasons, most saliently that the indictment states no actual offence (ie, no juror whom he actually influenced), and that the vagueness of the charge could potentially ensnare someone who wrote an op-ed or academic article about jury nullification. The prosecution returned fire last month, guns blazing. Their brief makes much of the unsavoury names of certain blogs for which Mr Heicklen has written (tyrannyfighters.com, Blog of Bile) and argues that the nullification pamphlet "strongly suggests that jurors lie to judges" (not quite true). It argues that the courthouse steps are not a public forum, that the first amendment can be curtailed during trials or near courthouses, and that the jury-tampering statute would not ensnare a writer of articles on jury nullification (phew), because the statute requires intent.

But the strangest part of the prosecutors' brief is the transcript of a conversation between Mr Heicklen and an "undercover agent" posing as a juror. Now, passing over the substance of the conversation (by the way, I apologise for the lack of links to the briefs; they are not online anywhere I could find them), it strikes me as singularly odd that the US Attorney's Office should use an undercover operation to prosecute one person handing out pamphlets. A recent New York Timesarticle on this subject is headlined "Prosecution Explains Tampering Charge", but that is only half right: they explain why the case should not be dismissed, but not why they think it worth bringing. The brief contends that jurors have the ability, but not necessarily the right, to nullify. Perhaps the prosecutors are bringing this case to scare off potential nullification activists. In that they will likely fail spectacularly. Had prosecutors ignored Mr Heicklen he would likely have been just one more crank with a cause. Instead he is starting to look like a hero. As Mr Heicklen noted earlier this year, when it comes to jury nullification—a potentially awesome power about which most people know nothing—"bad publicity is better than no publicity."