ORLANDO — Mark Schmidter has filed an appeal of his contempt of court conviction in Orange County, and he believes the case should interest millions of other Libertarian-minded activists who worry that their free speech rights are being eroded.
In his own case, Schmidter said, it was the court system itself that curbed, rather than protected, his right to freedom of speech.
Schmidter said his lawyer, Adam Sudbury of Orlando, told him as he was filing the appeal that “It’s just hard to understand how the courts won’t agree with this. The idea of you not being able to hand anything to somebody is crazy. Any time someone tells you that you can’t do it, they’re intefering with your free speech.”
But that, Schmidter said, is exactly what’s at stake here.
And if the appeals courts don’t overturn his conviction, he’s facing nearly five months in the Orange County jail.
Schmidter, a roofing contractor in Orlando, got involved with a group called FIJA, and began distributing their literature to jurors in front of the Orange County Courthouse — until a judge banned him from doing that. When Schmidter defied the judge’s administrative order, he was found in contempt of court, and given a jail sentence. He’s now appealing it, arguing that the judge violated his right to free speech by prohibiting him from handing out material to jurors at a public building.
FIJA, or the Fully Informed Jurors Association, is an organization based in Helena, Montana, that promotes the concept of jury nullification — that if jurors don’t like the law that someone is being charged with, they should vote to acquit that person. That verdict, FIJA argues, sends a mesage that there are too many victimless crimes on the books, and that Americans need more freedom and fewer regulations.
Starting in September 2010, Schmidter began going to the front of the Orange County Courthouse, meeting with people who had been called for jury duty, and handing them fliers that purported to offer “Factual information about Jury Service.”
Then in January 2011, Belvin Perry Jr., chief judge of the Circuit Court of the Ninth Judicial Circuit, signed an administrative order blocking Schmidter from distributing FIJA’s flyers there, calling it a form of jury tampering.
Schmidter stopped handing out the flyers and FIJA recruited the support of the American Civil Liberties Union to challenge the administrative order on free speech grounds. Schmidter moved to the Seminole County Courthouse in Sanford, where he continued handing out the FIJA flyers – minus an administrative order from a local judge.
But news of the administrative order caught the attention of Julian Heicklen, founder of the group Tyranny Fighters. He had a long history of civil disobedience dating back to the 1940s.
Once he read about Perry’s order, Heicklen came to Orlando to defy the judge’s administrative order. For months, every time Heicklen returned to Orlando and handed out the FIJA pamphlets, the court ignored him. Eventually, Schmidter decided to start handing out the flyers again, and the entire system ignored both of them.
But the start of the very high profile Casey Anthony trial changed everything.
There were so many media spectators that Judge Perry, who presided over the Anthony murder trial, responded by establishing a so-called “free speech zone” in front of the courthouse – a taped-off section where reporters, protestors and others could congregate. Anyone found engaging in political or protest activity outside the free speech zone would be in violation of the judge’s administrative order, and could be found in contempt of court.
On June 29, Schmidter wandered outside the sphere of that free speech zone with his flyers — and got arrested. Judge Perry would find Schmidter guilty of indirect criminal contempt, a third degree felony, and sentenced him to five months in jail. The judge did allow Schmidter to post bail pending an appeal – and Schmidter quickly announced that he was planning a lengthy one, going all the way to Washington D.C. and the U.S. Supreme Court.
Heicklen had returned to Orlando on Aug. 17 for what he promised would be Orlando Protest Week, went to the courthouse, avoided the free speech zone and went directly in front of the courthouse. He, too, got arrested, and was convicted on similar contempt of court charges.
Heicklen also got released on bail and returned to New Jersey.
Schmidter said he and Heicklen were challenging the convictions together.
“There’s really an interesting thing about this,” Schmidter said. “One of the brilliant things that Julian came up with is he brought up the point that all this has nothing to do with what’s in the flyer. Perry had brought that up in my trial, that I was handing out something that could influence the jurors. Julian came up with the point that it doesn’t matter what’s in the flyer, we’re allowed to tell the jury anything we want, but the judge can’t — and the judge agreed with that. That’s a real interesting point.
“If the judge is involved with the trial, then he cannot talk to the jurors about anything,” Schmidter added. “The only thing he’s allowed to do is follow the law. He always tells the jury that ‘You’re going to make a decision based on how the law was written and how I give it to you,’ but he shouldn’t do it. He should just give the law to the jury and let them figutre it out. That’s one of the big problems with the jury system. Really, he should be handing them the law in written form. The laws are written in such a way that they’re easy to understand.”
In the meantime, Schmidter is still distributing FIJA flyers — but not in front of the Orange County Courthouse.
“We’re still doing it every Monday morning at the Seminole County Courthouse, and we’re also at the Volusia County Courthouse. Volusia County was going to put a ‘no trespassing’ order on me, but I didn’t have any identification on me, so they couldn’t do that.”
As for Heicklen, Schmidter said he doesn’t expect him to come back to Orlando for a long time — if at all.
“What Julian did is he flew into Israel, and he settled there,” Schmidter said. “He got citizenship in Israel, so he’s staying there indefinitely.
He said he’s just tired of the tyranny of this country. I said, ‘Well, they’ve got the same problems there,’ but he said he doesn’t think quite as much.”
Heicklen arrived in Israel on May 22 as a political exile and was granted Israel citizenship at customs. He sent out an email to supporters of his Tyranny Fighters group, claiming there was a warrant out for his arrest in Santa Ana, Calif., because he had distributed pamphlets on the sidewalk in front of the U.S. District Courthouse in Santa Ana.
He was arrested for the same offense — although those cases got dismissed — in Springfield, Mass., Newark, N.J., and 11 times in New York City.
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