How can you even say that in court and retain your position as a judge?
I am not a lawyer, but if the judge was wrong that the First Amendment is not relevant to the crime and the law Olson is being charged under, then the defendant should be able to make that case in appeal (i.e. that the defendant was guilty of the crime, but that it is unconstitutional for this to be a crime).
It is someone of a legal philosophy debate: is the role of a jury simply to return a verdict of guilty or not guilty, or does the jury have the right to decide on the law itself?
In modern legal practice in the US, the law itself is not argued before the jury. What the judge seems to be doing here seems to be standard legal practice.
Circumventing the 5th amendment by granting immunity then imposing contempt of court.
Sounds like great grounds for appeal.
E.g. in this case the accusation is that Olson vandalized BoA for 6 months, causing the bank to have to continually pay to have the chalk cleaned off and risking further property damage.
Olson has a free speech right to protest, but that does not mean that he can unilaterally choose means that infringe on the rights of others.
You are right that foreclosing the issue may make great grounds for an appeal though, it's possible an appeal court could rule that the First Amendment is relevant and cause the case to be re-tried.
To not even be able to reference his right to free speech, if it's upheld I'm quite worried.
If his right to free speech is indeed being violated by applying the law, then modern legal practice does not consider this to be an issue for the jury itself to consider (it is considered in a separate manner, by the judge and by appeal).
In both circumstances, participants must follow the speaking rules or be subject to penalties of various sorts (contempt of court, censure, etc).
Attempting to utilize 1st amendment rights in order to bypass those procedures seems like the wrong approach. A more logical avenue might be appeal based on the 6th Amendment right to a fair trial and/or due process arguments.
There are certainly cases of vandalism of private property where it may even be an issue (if the property involved was owned by people acting as agents of the state/federal government, etc), but this isn't one of them.
Honestly, the fact that this question is being asked repeatedly proves the judge's point: People don't understand where and when the first amendment applies, and where it clearly doesn't, the only possible outcome is to confuse the jury.
https://en.wikipedia.org/wiki/Jury_instructions#United_State...
Summarized:
Under the American judicial system, juries are often the trier of fact when they serve in a trial. In other words, it is their job to sort through disputed accounts presented in evidence. The judge decides questions of law, meaning he or she decides how the law applies to a given set of facts.
The jury instructions provide something of a flow chart on what verdict jurors should deliver based on what they determine to be true.
Often they are much more complex, although certain elements frequently recur. For instance, if a criminal defendant chooses not to testify, the jury will be often be instructed not to draw any negative conclusions from that decision.