UPDATED: Jurors Not Allowed to Consider First Amendment in Political Dissent Case

January 17, 2013   By Rebecca Kemble

Earlier today, Dane County Circuit Court Judge Julie Genovese approved the State of Wisconsin’s motion to prohibit Jason Huberty from giving instructions to a jury relating to the First Amendment. His case stems from an alleged administrative rule violation for  holding a banner that said “Solidarity” in the Capitol rotunda on September 10, 2012. Huberty asserts this action constitutes protected First Amendment speech.

Jason Arrest

Jason Huberty being approached by three Capitol Police officers on September 10, 2012, just before he was issued a citation for holding a banner.

In her ruling, Judge Genovese said, “Determining interpretation of administrative rules is a question of law.” She further elaborated, “Whether or not (the rule) is constitutional, it is a question of constitutional fact” which must be raised and decided directly by the court. She reasoned that, “instructing the jury on standards they will not apply will only confuse the jury.”

Commenting on the ruling, Huberty’s attorney, former Kenosha County District Attorney Robert Jambois said, “If we raise a constitutional issue directly, it will get kicked up to the State Supreme Court,” which he characterized as, “hostile territory for people who are not conservative Republicans.”

Genovese ruled in Huberty’s favor on two other matters raised by the attorneys, and against him on two others. She agreed with Huberty and his lawyers that the definition of the verb “to conduct” includes a significant leadership role. Assistant District Attorney Winn Collins wanted to expand the definition to include the act of participation in a rally, parade, or demonstration.

Attorney Jambois argued, “In this context it means leading, not simply participating.” He added, “Take the example of a viola player in a symphony. They are not conducting. This rule is aimed at the conductor, not the viola player.”

Genovese agreed, saying that, “To conduct means from a leadership position.” She said that she will come to a conclusive definition before jury selection begins next Tuesday, January 22.

Supporters of free speech at the Capitol at the Dane County Courthouse before Huberty's hearing.

Supporters of free speech at the Capitol at the Dane County Courthouse before Huberty’s hearing.

Judge Genovese also denied the State’s request to consolidate the three remaining cases against Huberty into a single action. Five similar cases in which Huberty was issued citations for violating different sections of the administrative code involving “introduction of equipment and hazards” and “unlawful display of signs” have been dropped.

Explaining that it would be, “Difficult to determine whether his conduct was the same or different on three separate occasions,” Judge Genovese said, “The jury should independently evaluate what happened on a specific date. The prejudice to Mr. Huberty outweighs the need to consolidate judicial resources.”

In the matter of recovering court costs and attorney’s fees should Huberty prevail in the case, Judge Genovese decided that cost recovery was “inapplicable in this case.” Attorney Jambois says he plans to file a Motion to Reconsider that will argue she based her decision on the wrong statute.

Judge Genovese also ruled that the jury should be instructed to decide the case with reference to the language specific to Wisconsin Adm 2.14(2)(v) without reference to other related rules regarding the legality of a gathering.

After the decisions were rendered, Assistant Attorney General Winn Collins requested that the first of the three cases be postponed until next month so that, even if they had to be separate cases with different juries, they could “track” together. Judge Genovese denied his request.

Jury selection for this case is scheduled for next Tuesday, with opening arguments to begin the following day on Wedensday, January 23, 2013 at the Dane County Courthouse in courtroom 8A.


UPDATE – January 18, 2013 – Attorney Jambois reports that all three cases against Jason Huberty have been dropped by the Attorney General.

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2 Comments on “UPDATED: Jurors Not Allowed to Consider First Amendment in Political Dissent Case”

  1. Jim Kieselburg January 18, 2013 at 10:29 am #

    Free Country My A$$ ! Even the courts are under Right-wing control !!The ReThugliCons want it all !

  2. Lex January 19, 2013 at 4:21 pm #

    In fairness, whether the First Amendment can be considered in the case is a matter of law to be decided by the court, not a matter of fact to be decided by the jury. That said, although IANAL, I’ve spent enough time over the past 33 years on First Amendment law both as a student and a journalist to believe that the speech in this case is about as protected as any speech can be under the First Amendment, and for the court to determine otherwise would be an enormous deviation from precedent.

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