FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FRANK W. TURNEY, 

No. 03-35165 Petitioner,

D.C. No.

v.  CV-01-00010-JWS

MARGARET PUGH, Commissioner, OPINION Respondent. 

Appeal from the United States District Court

for the District of Alaska

John W. Sedwick, District Judge, Presiding

Argued and Submitted

February 17, 2005—Seattle, Washington

Filed March 15, 2005

Before: Betty B. Fletcher, Ronald M. Gould, Circuit Judges,

and Samuel P. King, District Judge.*

Opinion by Judge B. Fletcher

*Honorable Samuel P. King, Senior United States District Judge for the

District of Hawaii, sitting by designation. 

3253
COUNSEL

Mary C. Geddes, Assistant Federal Public Defender, Anchorage, Alaska, for the petitioner. 

Douglas H. Kossler, Assistant Attorney General, Anchorage,

Alaska, for the respondent. 

OPINION

B. FLETCHER, Circuit Judge: 

This case raises the perennially difficult issue of the proper

balance between two of our society’s most treasured guarantees: the fair administration of justice (including, most importantly, a defendant’s right to a fair trial) and the right to

freedom of expression. In this appeal from the denial of his

petition for a writ of habeas corpus, petitioner Frank Turney

alleges that the Alaska jury tampering statute under which he

3256 TURNEY v. PUGH
was convicted is overbroad in violation of the First Amendment. As interpreted by the Alaska Supreme Court, the statute

prohibits knowingly communicating with a juror, directly or

indirectly, with the intent to influence the outcome of a specific case, unless such communication is permitted by the

rules of the proceeding. We conclude that the Alaska Supreme

Court has interpreted the statute narrowly enough that it does

not reach a substantial amount of protected speech. We therefore affirm the denial of Turney’s petition. 

I. BACKGROUND

In July 1994, prior to the commencement of jury selection

in the Alaska criminal case State v. Hall in Fairbanks, jurynullification proponent Frank Turney approached three members of the venire in the courthouse and told them to call the

toll-free number of the Fully Informed Jury Association.

Some of the individuals Turney lobbied were wearing badges

that identified them as jurors. At the time, a person calling the

number Turney publicized, 1-800-TEL-JURY, would have

heard the following message:

Thank you for calling the Fully Informed Jury Association. FIJA is a nonprofit educational association

that wants all Americans to know their rights as

jurors to judge the law itself as well as the facts

regardless of the instructions from the judge because

jurors cannot be punished for their verdict. They are

the final check and balance on our government, with

more power than the President, Congress, or the

Supreme Court. To talk to a live person, call 406-

793-5550 or we will mail you more free information

on jury veto power, if you tell us how you heard of

us. Then name and spell your name, address, and zip

code. Here’s the tone. [TONE] 

Juror Ellis, one of the individuals Turney approached, was

selected for the petit jury in State v. Hall. At one point during

TURNEY v. PUGH 3257
deliberations, Ellis announced to the other jurors that he had

called 1-800-TEL-JURY and that he was changing his vote in

the case because “I can vote what I want.” He urged the other

jurors to call the number. The jury was unable to reach a decision and was excused. 

Turney was subsequently indicted for three counts of jury

tampering and charged by information with two counts of

criminal trespass in the first degree. Alaska’s jury tampering

statute provides:

A person commits the crime of jury tampering if the

person directly or indirectly communicates with a

juror other than as permitted by the rules governing

the official proceeding with intent to 

(1) influence the juror’s vote, opinion, decision, or other action as a juror; or 

(2) otherwise affect the outcome of the official proceeding.

Alaska Stat. § 11.56.590(a). A “juror” for purposes of this

statute is “a member of an impanelled jury or a person who

has been drawn or summoned to attend as a prospective

juror.” Id. § 11.56.900(3). 

The superior court denied Turney’s motion to dismiss the

charges. The Alaska Supreme Court permitted an interlocutory appeal and affirmed the denial of Turney’s motion to dismiss. Turney v. State, 936 P.2d 533, 545 (Alaska 1997).

Holding that the jury tampering statute “proscribes only

speech intended to influence a juror in his or her capacity as

a juror in a particular case,” and that such speech is unprotected, the court rejected Turney’s overbreadth challenge to

the law. Id. at 541.1

1The court also upheld the statute against a vagueness challenge and

rejected Turney’s argument that he fell outside the definition of criminal

3258 TURNEY v. PUGH
Turney was convicted at trial of three counts of jury tampering. The court sentenced him to fourteen months on each

count to run concurrently, with all but sixty days suspended,

plus a $2,500 fine (mostly suspended), 160 hours of community service work, and six years of probation. On direct

appeal, the Alaska Court of Appeals affirmed, in an unpublished opinion that rejected Turney’s overbreadth and vagueness arguments as foreclosed by the Alaska Supreme Court’s

decision in the interlocutory appeal. One judge dissented. The

Alaska Supreme Court denied Turney’s petition for review. 

In 2001, Turney petitioned the federal district court in

Alaska for a writ of habeas corpus, which the court denied.

According to the court, the Alaska Supreme Court’s overbreadth decision was fully in accord with United States

Supreme Court jurisprudence, which makes clear that

attempts to interfere with the administration of justice by

improperly influencing jurors are not entitled to First Amendment protection. The court also rejected Turney’s vagueness

challenge and his argument that his Sixth Amendment rights

were violated because the jury was not presented with every

element of the crime of jury tampering. The district court

denied a certificate of appealability, but we granted one with

respect to the question of whether Alaska’s jury tampering

statute is overbroad. We therefore have jurisdiction under 28

U.S.C. § 2253(a). 

II. ANALYSIS

A district court’s denial of habeas relief is reviewed de

novo. Beardslee v. Woodford, 358 F.3d 560, 568 (9th Cir.

2004). A habeas petitioner under 28 U.S.C. § 2254 cannot

trespass. See id. at 542-45. 

We discuss the Alaska Supreme Court’s overbreadth holding in detail

below. 

TURNEY v. PUGH 3259
obtain relief based on a claim adjudicated on the merits in

state court unless 

the adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United

States; or (2) resulted in a decision that was based on

an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). The “clearly established Federal law”

inquiry refers to “the governing legal principle or principles

set forth by the Supreme Court at the time the state court renders its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72

(2003). 

A state court decision is “contrary to” clearly established

Supreme Court precedent where the court “applies a rule that

contradicts the governing law set forth in [the Supreme

Court’s] cases,” or “confronts a set of facts that are materially

indistinguishable from a decision of [the Supreme] Court and

nevertheless arrives at a result different from [that] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A

state court decision is an “unreasonable application of” clearly

established Supreme Court precedent where the court “identifies the correct governing legal principle from [the Supreme]

Court’s decisions but unreasonably applies that principle to

the facts of the prisoner’s case.” Id. at 413. 

The “highly deferential standard for evaluating state-court

rulings” reflects a respect for state courts as “part of a coequal judiciary” and as “competent interpreters of federal

law.” Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003)

(citations and internal quotation marks omitted). Though we

review the district court’s decision de novo, we “cannot grant

relief . . . by conducting our own independent inquiry into

whether the state court was correct as a de novo matter.” Yar3260 TURNEY v. PUGH
borough v. Alvarado, 124 S. Ct. 2140, 2150 (2004). Accordingly, for federal habeas relief to be granted, it is not enough

that our independent review indicate that the state court decision was incorrect or clearly erroneous; the state court’s application of clearly established Supreme Court precedent must

be “objectively unreasonable.” Lockyer, 538 U.S. at 75-76. 

In applying the standards of 28 U.S.C. § 2254, the relevant

state decision is the “last reasoned decision by a state court.”

Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004)

(citation and internal quotation marks omitted). Here, because

the Alaska Court of Appeals treated the overbreadth issue as

settled by the Alaska Supreme Court on interlocutory review,

it is the Alaska Supreme Court’s decision whose conformity

to federal law (under the deferential standard of § 2254(d)) is

at issue. 

[1] Under the doctrine of First Amendment overbreadth, a

litigant may mount a facial attack on a statute that restricts

protected speech even if the litigant’s own speech is unprotected. Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973).

The overbreadth must be substantial in order for the statute to

be invalidated on its face; the fact that a court may conceive

of a single impermissible application is insufficient to justify

striking down the law. City of Houston v. Hill, 482 U.S. 451,

458 (1987). 

When examining a law for overbreadth, a court’s first task

is to determine “whether the enactment reaches a substantial

amount of constitutionally protected conduct.” Id. (citation

and internal quotation marks omitted). Where a state statute

challenged for overbreadth has been construed by the state’s

highest court, the scope of the statute is to be assessed in light

of the construction that court has given. See Osborne v. Ohio,

495 U.S. 103, 113 (1990). 

The Alaska Supreme Court’s decision in Turney’s case provides a detailed analysis of the state’s jury tampering statute.

TURNEY v. PUGH 3261
Specifically, the court held that the statute prohibits only

“communications intended to affect how the jury decides a

specific case” where the speaker has “intent to influence the

outcome” and knows he or she is communicating with a juror.

Turney, 936 P.2d at 540-41 (emphasis added). As thus interpreted, the statute did not, in the court’s view, reach speech

protected by the First Amendment. Id. at 541. For example,

because of the “particular case” requirement, the statute

“would not reach institutional messages that are broadcast to

the general public on such topics as the adverse effects of

insurance fraud or the wisdom of tort reform.” Id. at 540. The

court dismissed the concern that the statute would unfairly

sweep in an innocent person giving a juror general advice,

such as “You must do your very to best to be fair,” or expressing a generalized opinion to an juror, as in “You’re on jury

duty? I don’t care what the case is — hang ‘em!” Though the

court did not deny that such statements could result in criminal liability, the court explained that “[w]hether such statements violate the statute turns on the intent of utterer.” Id. at

540 & n.9. Finding that the statute as construed only reached

speech aimed at influencing jurors, and that such speech is

unprotected, the court held that the statute was not overbroad.

Id. at 541. 

[2] In light of the Alaska Supreme Court’s opinion, the

scope of the jury tampering statute can be described as follows: the law criminalizes knowingly communicating with a

juror, directly or indirectly, with the intent to influence the

outcome of a specific case, unless such communication is permitted by the rules of the proceeding. We must now determine whether this prohibition sweeps in a substantial amount

of speech that is constitutionally protected. 

The Supreme Court has developed robust protections for

speech concerning judicial proceedings. In a line of cases

beginning with Bridges v. California, 314 U.S. 252 (1941),

the Court reversed a series of contempt convictions for disseminating editorials and other public commentary about

3262 TURNEY v. PUGH
pending cases or grand jury investigations. See id. at 268-75

(reversing contempt convictions for publishing editorials,

including one urging a judge to impose harsh punishment on

two defendants facing sentencing); Pennekamp v. Florida,

328 U.S. 331, 336 & n.4, 349-50 (1946) (reversing contempt

convictions for publishing editorials critical of pro-defendant

rulings in criminal cases); Craig v. Harney, 331 U.S. 367,

369-70, 377-78 (1947) (reversing contempt convictions for

publishing editorials criticizing a judge for directing a verdict

in a particular case); Wood v. Georgia, 370 U.S. 375, 376-80,

395 (1962) (reversing the contempt conviction of a local sheriff for publicly denouncing a court’s instruction to a grand

jury to investigate “Negro bloc voting” in a Georgia county).

As the Supreme Court recognized, restrictions on speech concerning pending judicial proceedings are likely to impede discussion of important public issues “at the precise time when

public interest in the matters discussed would naturally be at

its height.” Bridges, 314 U.S. at 268. But “[n]o suggestion can

be found in the Constitution that the freedom there guaranteed

for speech and the press bears an inverse ratio to the timeliness and importance of the ideas seeking expression.” Id. at

269. 

[3] In these cases, the Court applied various versions of the

then-evolving “clear and present danger” test to evaluate

restrictions on speech concerning judicial proceedings. See id.

at 271 (assessing “to what extent the substantive evil of unfair

administration of justice was a likely consequence” of publication of the articles in question, and “whether the degree of

likelihood was sufficient to justify summary punishment”);

Pennekamp, 328 U.S. at 348 (assessing whether publications

created “a clear and present danger to the fair administration

of justice”); Harney, 331 U.S. at 378 (assessing whether publications created “an imminent and serious threat to the ability

of the court to give fair consideration” to pending matters);

Wood, 370 U.S. at 384-85 (following Bridges, Pennekamp,

and Craig). In light of the subsequent evolution of the clear

and present danger test, it can be extrapolated that, as a genTURNEY v. PUGH 3263
eral rule, speech concerning judicial proceedings may be

restricted only if it “is directed to inciting or producing” a

threat to the administration of justice that is both “imminent”

and “likely” to materialize. Brandenburg v. Ohio, 395 U.S.

444, 447 (1969) (per curiam) (setting forth the successor to

the clear and present danger test applied in its various incarnations in the Bridges-Wood line of cases). 

[4] However, speech to jurors about pending cases presents

a special problem because of its grave implications for defendants’ right to a fair trial and the public’s interest in fair and

impartial justice. In Remmer v. United States, 347 U.S. 227

(1954), for example, the Supreme Court vacated the conviction of a defendant whose jury foreman was told by an

unnamed person that he could profit by ensuring an acquittal.

Id. at 228, 230. The Court set forth this broad rule: “In a criminal case, any private communication, contact, or tampering

directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed

presumptively prejudicial” unless made pursuant to court

rules or other instructions. Id. at 229 (emphasis added). In

Sheppard v. Maxwell, 384 U.S. 333 (1966), the Supreme

Court found that habeas relief was warranted for a defendant

tried and convicted in a “carnival atmosphere,” id. at 358, created by “inherently prejudicial publicity which saturated the

community,” id. at 363. The Court explained: “The theory of

our system is that the conclusions to be reached in a case will

be induced only by evidence and argument in open court, and

not by any outside influence . . . .” Id. at 351 (citation and

internal quotation marks omitted). In fact, “[d]ue process

requires that the accused receive a trial by an impartial jury

free from outside influences.” Id. at 362 (emphasis added). 

Even in the strongly speech-protective decisions of the

Bridges-Wood line, the Court was careful to distinguish the

publications it deemed protected under the First Amendment

from speech aimed at improperly influencing jurors. As the

Court observed in Bridges: “The very word ‘trial’ connotes

3264 TURNEY v. PUGH
decisions on the evidence and arguments properly advanced

in open court. Legal trials are not like elections, to be won

through the use of the meeting-hall, the radio, and the newspaper.” 314 U.S. at 271. Thus, in Wood v. Georgia, while the

Court held that the First Amendment protected a sheriff’s

public criticism of a pending grand jury investigation, the

Court stressed that the speech at issue there “[did] not represent a situation where an individual is on trial; there was no

‘judicial proceeding pending’ in the sense that prejudice

might result to one litigant or the other by ill-considered misconduct aimed at influencing the outcome of a trial.” Wood,

370 U.S. at 389. The majority concluded that it “need not

pause . . . to consider the variant factors that would be present

in a case involving a petit jury”; in Wood, as in Bridges, Pennekamp, and Harney, a jury trial was not implicated. Id.

[5] Reading all of these cases together leads us to conclude

that the First Amendment, while generally quite protective of

speech concerning judicial proceedings, does not shield the

narrow but significant category of communications to jurors

made outside of the auspices of the official proceeding and

aimed at improperly influencing the outcome of a particular

case. What Alaska’s jury tampering statute covers in the

main, then, is speech that is not protected by the First Amendment. 

Turney urges us to apply Brandenburg and hold that the

State may not proscribe speech to jurors unless it is likely

imminently to undermine the administration of justice. But

the Supreme Court has never applied any version of the clear

and present danger test to communications made knowingly

to jurors with the intent to influence the outcome of a specific

case. On the contrary, as we have observed, the Court has

expressly distinguished such communications from the speech

it has protected under the First Amendment and as a general

matter has demonstrated little tolerance for improper communications with jurors. Thus the fact that the Alaska Supreme

Court declined to apply Brandenburg to the jury tampering

TURNEY v. PUGH 3265
statute did not render that court’s decision “contrary to”

Supreme Court precedent. 

[6] Despite its primary focus on unprotected speech, the

Alaska statute is nonetheless overbroad if it covers a substantial amount of protected speech. “[T]he possible harm to society in permitting some unprotected speech to go unpunished

is outweighed by the possibility that protected speech of others may be muted . . . .” Broadrick, 413 U.S. at 612. In his

dissent from the affirmance of Turney’s conviction on direct

appeal, Alaska Court of Appeals Judge Mannheimer argued

that, in spite of the state supreme court’s limiting construction, the statute would still criminalize two substantial categories of protected speech: innocent advice to jurors and

political demonstrations outside a courthouse. 

With respect to the first example, it is doubtful that the statute as construed by the Alaska Supreme Court sweeps as

broadly as Judge Mannheimer fears. In his dissent, Judge

Mannheimer posited a detailed hypothetical in which a juror

is told by her daughter to avoid reading the newspaper so she

does not encounter publicity about the case on which she is

serving as a juror, the juror’s husband advises her to contact

the police after she receives a threatening phone call, and a

police officer instructs the juror to notify the trial judge of the

phone call. Judge Mannheimer contended that all three of

these contacts would be criminal under Alaska’s jury tampering statute because all three speakers communicated with the

juror, knowing she was a juror, with the intent to influence

her actions as a juror in a particular case. 

We disagree with Judge Mannheimer’s analysis of this

hypothetical, because one element of the statute (as construed) is not met: the intent to influence the outcome of a particular case. None of the three innocent jury communications

posited by Judge Mannheimer is “intended to affect how the

jury decides a specific case.” Turney, 936 P.2d at 540

(emphasis added); see also id. (“[I]t is the intent to influence

3266 TURNEY v. PUGH
the outcome that is critical.”). Thus the fear that Alaska has

criminalized many innocent conversations with jurors is exaggerated; under the Alaska Supreme Court’s interpretation, the

statute will rarely reach such conversations because the

speaker will rarely possess the requisite intent. 

Judge Mannheimer’s second example — political demonstrators, situated immediately outside a courthouse, shouting

to everyone approaching the courthouse fervent opinions

about the guilt or innocence of the defendant being tried

inside — raises challenging questions about the proper balance between due process and freedom of expression. But we

need not engage in the difficult task of balancing fundamental

rights with respect to courthouse demonstrations, because the

Supreme Court already has. 

In Cox v. Louisiana, 379 U.S. 559 (1965), the Supreme

Court considered the case of a man prosecuted for his

involvement in a demonstration in front of a courthouse to

protest the arrest of a group of students the previous day. Id.

at 564-65. Though the Court reversed the defendant’s conviction on due process grounds, see id. at 568-71, it refused to

invalidate the statute under which he was convicted. The statute read:

Whoever, with the intent of interfering with,

obstructing, or impeding the administration of justice, or with the intent of influencing any judge,

juror, witness, or court officer, in the discharge of his

duty pickets or parades in or near a building housing

a court of the State of Louisiana shall be fined not

more than five thousand dollars or imprisoned not

more than one year, or both. 

Id. at 560 (citation, internal quotation marks, and ellipsis

omitted). Finding the statute to be “narrowly drawn to punish

specific conduct that infringes a substantial state interest in

TURNEY v. PUGH 3267
protecting the judicial process,” the Supreme Court rejected a

facial challenge to the law. Id. at 564. 

[7] While Alaska’s statute is directed at a different set of

communications than the Louisiana statute at issue in Cox, the

former is no broader in its applicability to courthouse demonstrations than the latter. In fact, the Alaska statute’s applicability to courthouse demonstrations is more limited than that

of the Louisiana statute, as the Alaska law reaches only communications made to a juror with the intent to influence the

outcome of a particular case, as opposed to all communications made “with the intent of interfering with, obstructing, or

impeding the administration of justice, or with the intent of

influencing any judge, juror, witness, or court officer, in the

discharge of his duty.” Id. at 560 (citation and internal quotation marks omitted). Since the impact of the Louisiana statute

on courthouse demonstrations did not render it facially unconstitutional, the Alaska statute’s narrower impact on this class

of speech probably does not render the Alaska statute facially

unconstitutional either. The Alaska Supreme Court’s rejection

of Turney’s overbreadth challenge was therefore not an objectively unreasonable application of Cox. 

[8] A third area in which Alaska’s statute could intrude into

the realm of protected expression is the mass publication of

political ideas. For example, the terms of the statute could be

construed to apply to a person who takes out a newspaper or

television advertisement supporting a particular outcome in a

pending case (e.g., “OJ Was Framed!”). The ad is an indirect

communication with the newspaper’s or television station’s

entire audience. If that audience includes a juror in the case,

the purchaser of the ad has communicated with a juror, other

than as permitted by the rules of the proceeding, with the

intent of influencing the outcome of a specific case. 

[9] The Alaska Supreme Court has specifically addressed

our concerns on this score. The court observed that the statute’s implied scienter requirement would prevent application

3268 TURNEY v. PUGH
of the statute to mass communications of this type, because

the speaker would have to know that she or he was communicating with a juror in order to be guilty of jury tampering.

Turney, 936 P.2d at 541. Once again, the Alaska Supreme

Court’s construction of the statute has narrowed its reach so

that it does not sweep in a substantial amount of protected

speech. 

[10] It is possible that Alaska’s jury tampering statute may

cover one or two instances of constitutionally protected

speech to jurors. But a law may not be held invalid on its face

“merely because it is possible to conceive of a single impermissible application.” Hill, 482 U.S. at 458 (citation and internal quotation marks omitted). The parties and state opinions

in this case have identified only one swath of protected speech

that the statute (as construed by the Alaska Supreme Court)

could reach — political demonstrations at a courthouse about

trials occurring therein — and the U.S. Supreme Court in Cox

rejected a facial challenge to a statute that impinged upon

such speech to a broader degree. We have not been able to

identify any other applications of the Alaska statute that

would reach a substantial amount of constitutionally protected

speech. We must therefore conclude that it was not objectively unreasonable for the Alaska Supreme Court to hold that

the jury tampering statute, as construed, is not overbroad in

violation of the First Amendment. 

III. CONCLUSION

When government restricts the expression of ideas, alarm

bells should sound for all of us. The freedom of speech —

including both a speaker’s freedom to convey an idea, and a

listener’s freedom to receive it — is at the heart of the protections that our Constitution guarantees so that our society may

remain a free one. The fact that judicial proceedings can be

sensitive and controversial does not diminish the importance

of vigorous national debate on matters concerning the administration of justice. 

TURNEY v. PUGH 3269
But our courts will be unable to carry out their vital functions — including the weighty task of enforcing the guarantees of our Constitution — if jurors are not insulated from

influences that could undermine their ability to decide the

cases before them fairly and impartially. “Due process

requires that the accused receive a trial by an impartial jury

free from outside influences.” Sheppard, 384 U.S. at 362. 

[11] The Alaska Supreme Court has carefully narrowed the

state’s jury tampering statute so that it operates in service of

the latter constitutional command without substantially

impinging on the former. Given this construction, the Alaska

Supreme Court’s conclusion that the jury tampering statute is

not overbroad in violation of the First Amendment was not “a

decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined

by the Supreme Court of the United States.” 28 U.S.C.

§ 2254(d)(1). We therefore affirm the district court’s denial of

habeas relief. 

AFFIRMED.

3270 TURNEY v. PUGH