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It seems to me that the 1st Amendment should, in principle, give you the right to remain silent in any circumstances (including when you're subpoenaed). After a

It seems to me that the 1st Amendment should, in principle, give you the right to remain silent in any circumstances (including when you're subpoenaed). After all, shouldn't freedom of speech include the freedom to not speak - isn't remaining silent in of itself a form of expression? I understand that this is not at all how the courts have interpreted the constitution, but it remains my gut interpretation - that individuals should have the right to freedom of speech and silence. I also believe, for the similar reasons, that lying to an FBI officer, when not under oath, should be constitutionally protected.

baryphonic 7y ago
While it might sound nice to want to sweep away compelled testimony, in this case the cure is much worse than the disease. A major part of the Constitution's objective as specified in the preamble is to "establish justice." Certainly criminal elements - actual criminals, not people who are quasi-political prisoners like Assange - would love to be able to refuse to testify under any circumstances. Such an interpretation would be untenable and would lead to essentially a failed state. Thus we understand that the First Amendment does not mean that people cannot be called to testify in court. Furthermore, keep in mind that your interpretation is directly contradicted by, well, the Constitution. Sixth Amendment: > In all criminal prosecutions, the accused shall enjoy the right [...] to have compulsory process for obtaining witnesses in his favor [...] Considering that the First and Sixth Amendments were proposed together and ratified at the same time, I think the idea that the First Amendment allows people not to speak under compulsion of court is untenable. Finally, the text of the First Amendment begins "Congress shall make no law [...]" That framing is important: the right is against Congress enacting a law, not the courts granting an order compelling speech (like a subpoena) or forbidding it (like a gag order or keeping grand jury proceedings secret).
- anikan_vader 7y ago
  Thank you for a very insightful reply that has made me reflect on my position. I am still concerned by the ethical ramifications of forcing people to testify against their friends and loved ones. I don't think it would necessarily result in a failed state if the prosecution were forced to rely on only willing witnesses and physical evidence. I am curious if you have any insight regarding the crime of making false statements to federal agents [1]. This actually is a law passed by congress that seems to interfere with free speech. [1] https://en.wikipedia.org/wiki/Making_false_statements https://en.wikipedia.org/wiki/Making_false_statements
  - baryphonic 7y ago
    Cheers for thoughtful dialogue on the Internet! I should be clear: I don't personally support what the DOJ is doing to Assange. I even think the Espionage Act likely has Constitutional defects as applied to his case; it's just never been tested. And I think the Espionage Act should be repealed at the earliest possible moment. That being said, I think we're stuck with it, and our Constitution likely doesn't prevent it from being a law, albeit a bad one. On the other hand, I have serious misgivings about the false statement laws, at least as they cover unintentional false statements (i.e. those without _mens rea_). I don't think our Constitution was meant to punish people criminal for actions that they aren't even aware of. Unfortunately, there is long precedent establishing that "strict liability" is permissible even in criminal law. It seems like a gross violation of due process to me, but unless and until something changes, we're stuck with it. I think you've also hit on a much bigger problem I have with the justice system: this fairly absurd idea that law enforcement can do nearly whatever it wants, whenever it wants in order to seek its own ends. If I were to propose criminal justice reforms, I would focus first almost exclusively on police procedure. Forget about bail reform or sentencing guidelines: don't allow cops to lie to people while performing an investigation; strictly prohibit cops from making any innuendo that someone waiving his or her rights is somehow "looking guilty" or some such nonsense; and get rid of the plea bargaining system. Essentially the only thing anyone should ever say to law enforcement in the US is, "I refuse to any questioning without my attorney present." Anything else you say to them can and will be used against you, and cannot be used for your defense, since it is hearsay. It's not too hard to see that the distribution of people who know how to respond to pressure from the cops to talk is heavily skewed toward the less privileged segment of the population. When you add in things like plea bargaining, which has resulted in even many innocent people pleading guilty to crimes they didn't commit, I don't think anyone can call it justice. It's late so I'm rambling, but I think there are serious problems with the justice system. I just don't think Chelsea Manning is a particularly great poster child for them.

baryphonic 7y ago

While it might sound nice to want to sweep away compelled testimony, in this case the cure is much worse than the disease. A major part of the Constitution's objective as specified in the preamble is to "establish justice." Certainly criminal elements - actual criminals, not people who are quasi-political prisoners like Assange - would love to be able to refuse to testify under any circumstances. Such an interpretation would be untenable and would lead to essentially a failed state. Thus we understand that the First Amendment does not mean that people cannot be called to testify in court. Furthermore, keep in mind that your interpretation is directly contradicted by, well, the Constitution. Sixth Amendment: > In all criminal prosecutions, the accused shall enjoy the right [...] to have compulsory process for obtaining witnesses in his favor [...] Considering that the First and Sixth Amendments were proposed together and ratified at the same time, I think the idea that the First Amendment allows people not to speak under compulsion of court is untenable. Finally, the text of the First Amendment begins "Congress shall make no law [...]" That framing is important: the right is against Congress enacting a law, not the courts granting an order compelling speech (like a subpoena) or forbidding it (like a gag order or keeping grand jury proceedings secret).

anikan_vader 7y ago
Thank you for a very insightful reply that has made me reflect on my position. I am still concerned by the ethical ramifications of forcing people to testify against their friends and loved ones. I don't think it would necessarily result in a failed state if the prosecution were forced to rely on only willing witnesses and physical evidence. I am curious if you have any insight regarding the crime of making false statements to federal agents [1]. This actually is a law passed by congress that seems to interfere with free speech. [1] https://en.wikipedia.org/wiki/Making_false_statements https://en.wikipedia.org/wiki/Making_false_statements
- baryphonic 7y ago
  Cheers for thoughtful dialogue on the Internet! I should be clear: I don't personally support what the DOJ is doing to Assange. I even think the Espionage Act likely has Constitutional defects as applied to his case; it's just never been tested. And I think the Espionage Act should be repealed at the earliest possible moment. That being said, I think we're stuck with it, and our Constitution likely doesn't prevent it from being a law, albeit a bad one. On the other hand, I have serious misgivings about the false statement laws, at least as they cover unintentional false statements (i.e. those without _mens rea_). I don't think our Constitution was meant to punish people criminal for actions that they aren't even aware of. Unfortunately, there is long precedent establishing that "strict liability" is permissible even in criminal law. It seems like a gross violation of due process to me, but unless and until something changes, we're stuck with it. I think you've also hit on a much bigger problem I have with the justice system: this fairly absurd idea that law enforcement can do nearly whatever it wants, whenever it wants in order to seek its own ends. If I were to propose criminal justice reforms, I would focus first almost exclusively on police procedure. Forget about bail reform or sentencing guidelines: don't allow cops to lie to people while performing an investigation; strictly prohibit cops from making any innuendo that someone waiving his or her rights is somehow "looking guilty" or some such nonsense; and get rid of the plea bargaining system. Essentially the only thing anyone should ever say to law enforcement in the US is, "I refuse to any questioning without my attorney present." Anything else you say to them can and will be used against you, and cannot be used for your defense, since it is hearsay. It's not too hard to see that the distribution of people who know how to respond to pressure from the cops to talk is heavily skewed toward the less privileged segment of the population. When you add in things like plea bargaining, which has resulted in even many innocent people pleading guilty to crimes they didn't commit, I don't think anyone can call it justice. It's late so I'm rambling, but I think there are serious problems with the justice system. I just don't think Chelsea Manning is a particularly great poster child for them.