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Regarding the "Right to Silence", I recently learned something I didn't know. While I was familiar with the right to remain silent after arrest to avoid self-in

Regarding the "Right to Silence", I recently learned something I didn't know. While I was familiar with the right to remain silent after arrest to avoid self-incrimination (based on the Miranda ruling). There is a separate right to remain silent unrelated to incrimination (5th amendment) but rather tied to 1st amendment free speech. Of course, we're all familiar with free speech rights but is there a corresponding right to "free silence"? It turns out there is but it's not enumerated in the first amendment, so it's called an "implied right." It's been derived by the courts (including the Supreme Court) as logically inferred by the rights which are enumerated in the 1st amendment. What I found interesting is the boundaries of this implied right to silence are currently less well-defined than than the other 1st and 5th amendment rights. Apparently, some cases the court will be deciding this year may involve further fleshing out these fuzzy edges. I'm not an expert but as I recall, the scenarios may include things like whether social media networks can be compelled by a legislative statute to disclose (ie 'speak') their content moderation policies and whether public universities can enforce codes of conduct which may compel speech. Personally, I'm all-in on the vital necessity of robustly expansive free speech rights, so I'm also all-in on robust freedom of silence rights. I used to think I understood the limits of free speech in the U.S. but reading this article by 1st amendment expert Ken White on free speech tropes surprised me. Highly recommended: https://www.theatlantic.com/ideas/archive/2019/08/free-speech-cliches-media-should-stop-using/596506/ https://www.theatlantic.com/ideas/archive/2019/08/free-speec...

filoeleven 3y ago
Addendum: you must explicitly invoke your 5th amendment right to silence when being questioned by police in order to prevent your silence being used against you in court. It’s a shit ruling, but it’s also current law. This theoretically only applies if you have answered some questions but remained silent on others. https://www.scotusblog.com/case-files/cases/salinas-v-texas/ https://www.scotusblog.com/case-files/cases/salinas-v-texas/
- quickthrower2 3y ago
  So Miranda is not enough? Is “Lawyer” enough? Or is this pre-arrest?
  - dharmab 3y ago
    The magic words are "I am using my right to remain silent" followed by silence.
    - owenmarshall 3y ago
      No! In the US, case law has ended up more protective of people who invoke their right to an attorney than those who merely invoke their right to remain silent. In certain cases the police can restart interrogations after invocation of a right to remain silent, but if you invoke the right to an attorney any interrogation must stop until your counsel is present. These exceptions are narrow, but “being interrogated by the police” is the last place to chance stumbling into one. The magic words are: “I will not answer any questions without a lawyer present.”
      - filoeleven 3y ago
        Yeah. Also, the police are legally allowed to lie to you, but you are not legally allowed to lie to the police. I’m not interested in lying to the police, but when I know that they can lie to me, it’s a big disincentive to say anything to them at all. This is a problem.
        mrandish 3y ago
        As a pretty staunch civil libertarian, I agree with you about the asymmetry in rights. However, I'm curious about the statement: > "you are not legally allowed to lie to the police." I know that lying under oath in a court is perjury and in certain contexts some investigative agencies like the FBI can put you under oath and in that specific case materially false statements can be actionable. And I know that filing a false police report is against the law but I think that usually requires signing the report and it spells out that lying on the statement is perjury. But, in the scenario of a police officer just walking up and asking you questions on a street corner, prior to arresting or detaining you, is anything you say about anything which is later deemed to be false or misleading cause for arrest? Maybe it is but I'm trying think of what law it would be violating. I do know that civil libertarians say that if a police officer talks to you, you can ask "Am I being detained?" and if they don't answer "Yes" you are free to just walk away. My naive prior understanding is that things are more complicated and conditional than simply "Lying to a cop anytime, anywhere is always grounds for arrest and prosecution (even absent any other grounds for arrest)" but perhaps I was misinformed on this.
- crossroadsguy 3y ago
  As in literally “uttering” something on the lines of “as per the 5th amendment..blah. silence.. blah..”? And or course on a recorded interview/questioning, right? Because if there was no recording then it’s my word against police’s, right? (I am not from US).
  - wmidwestranger 3y ago
    In court, you must assert your right to not testify against yourself. Upon arrest, you're not obligated to speak or answer anything. The police are not officers of the court, nor involved in court proceedings during their interactions with the public, so there is no expectation or explicit penalty for not answering. In court, while being questioned, you're compelled, under penalty of perjury, to testify in full and truthfully unless there is a reason you can or may not: > Do you solemnly (swear/affirm) that you will tell the truth, the whole truth, and nothing but the truth?
    - filoeleven 3y ago
      “Upon arrest” is doing a lot of work here. BEFORE an arrest, the 5th must be explicitly invoked, perhaps only if you have answered some other questions though. See the case law I linked. The 4th (unreasonable search and seizure) is generally clearer, but I don’t know how it works online “stop and ID” states. IMO those laws are unconstitutional, but I haven’t looked into it because I don’t live in one.
    - notfed 3y ago
      > In court, while being questioned, you're compelled ... to testify To be clear, not if you're the defendant.
    - bacheaul 3y ago
      > Don't talk to the police: Regent Law Professor James Duane gives viewers startling reasons why they should always exercise their 5th Amendment rights when questioned by government officials. https://www.youtube.com/watch?v=d-7o9xYp7eE https://www.youtube.com/watch?v=d-7o9xYp7eE
  - 3y ago
tjpnz 3y ago
>whether public universities can enforce codes of conduct which may compel speech. Where would such a precedent leave things in terms of codes of conduct and open source?
- wredue 3y ago
  Or trespassing people who are no longer welcome. The idea that code of conduct can’t exist is nonsense. The idea that it violates free speech is also nonsense, as it has been well settled that you don’t have free speech on private land.
  - wmidwestranger 3y ago
    I can imagine codes of conduct are helping somebody and I wouldn't want to spoil their good times but I'm still a little salty that sqlite was forced to change their terms, based loosely on the Benedictine Order Code, so they could have corporate sponsors. My intuition suggests a large and random set of assholes has been replaced by a specific and goal-oriented set of assholes. I'll admit, the internet is everywhere, so every asshole is on the internet. I just remember before the Code of Conduct, there was definitely one less potential layer of assholes above, despite an ever present layer of assholes below, and there seemed to be more crazy and less conformist people. Would write more but I need to go yell at a cloud.
    - wredue 3y ago
      The thing is that most people never ever have to deal with codes of conduct because, as it turns out, treating other with respect, really isn’t a difficult thing to do.
- russell_h 3y ago
  It would have no effect at all. Public universities are part of the (state) government, so are bound by the first amendment. Open source projects are not part of the government, so their freedom to associate with whoever they choose (with some limitations implied by eg the 14th amendment, but nothing likely to affect currently prominent codes of conduct) is protected by the 1st amendment.

filoeleven 3y ago

Addendum: you must explicitly invoke your 5th amendment right to silence when being questioned by police in order to prevent your silence being used against you in court. It’s a shit ruling, but it’s also current law. This theoretically only applies if you have answered some questions but remained silent on others. https://www.scotusblog.com/case-files/cases/salinas-v-texas/ https://www.scotusblog.com/case-files/cases/salinas-v-texas/

quickthrower2 3y ago
So Miranda is not enough? Is “Lawyer” enough? Or is this pre-arrest?
- dharmab 3y ago
  The magic words are "I am using my right to remain silent" followed by silence.
  - owenmarshall 3y ago
    No! In the US, case law has ended up more protective of people who invoke their right to an attorney than those who merely invoke their right to remain silent. In certain cases the police can restart interrogations after invocation of a right to remain silent, but if you invoke the right to an attorney any interrogation must stop until your counsel is present. These exceptions are narrow, but “being interrogated by the police” is the last place to chance stumbling into one. The magic words are: “I will not answer any questions without a lawyer present.”
    - filoeleven 3y ago
      Yeah. Also, the police are legally allowed to lie to you, but you are not legally allowed to lie to the police. I’m not interested in lying to the police, but when I know that they can lie to me, it’s a big disincentive to say anything to them at all. This is a problem.
      - mrandish 3y ago
        As a pretty staunch civil libertarian, I agree with you about the asymmetry in rights. However, I'm curious about the statement: > "you are not legally allowed to lie to the police." I know that lying under oath in a court is perjury and in certain contexts some investigative agencies like the FBI can put you under oath and in that specific case materially false statements can be actionable. And I know that filing a false police report is against the law but I think that usually requires signing the report and it spells out that lying on the statement is perjury. But, in the scenario of a police officer just walking up and asking you questions on a street corner, prior to arresting or detaining you, is anything you say about anything which is later deemed to be false or misleading cause for arrest? Maybe it is but I'm trying think of what law it would be violating. I do know that civil libertarians say that if a police officer talks to you, you can ask "Am I being detained?" and if they don't answer "Yes" you are free to just walk away. My naive prior understanding is that things are more complicated and conditional than simply "Lying to a cop anytime, anywhere is always grounds for arrest and prosecution (even absent any other grounds for arrest)" but perhaps I was misinformed on this.
crossroadsguy 3y ago
As in literally “uttering” something on the lines of “as per the 5th amendment..blah. silence.. blah..”? And or course on a recorded interview/questioning, right? Because if there was no recording then it’s my word against police’s, right? (I am not from US).
- wmidwestranger 3y ago
  In court, you must assert your right to not testify against yourself. Upon arrest, you're not obligated to speak or answer anything. The police are not officers of the court, nor involved in court proceedings during their interactions with the public, so there is no expectation or explicit penalty for not answering. In court, while being questioned, you're compelled, under penalty of perjury, to testify in full and truthfully unless there is a reason you can or may not: > Do you solemnly (swear/affirm) that you will tell the truth, the whole truth, and nothing but the truth?
  - filoeleven 3y ago
    “Upon arrest” is doing a lot of work here. BEFORE an arrest, the 5th must be explicitly invoked, perhaps only if you have answered some other questions though. See the case law I linked. The 4th (unreasonable search and seizure) is generally clearer, but I don’t know how it works online “stop and ID” states. IMO those laws are unconstitutional, but I haven’t looked into it because I don’t live in one.
  - notfed 3y ago
    > In court, while being questioned, you're compelled ... to testify To be clear, not if you're the defendant.
  - bacheaul 3y ago
    > Don't talk to the police: Regent Law Professor James Duane gives viewers startling reasons why they should always exercise their 5th Amendment rights when questioned by government officials. https://www.youtube.com/watch?v=d-7o9xYp7eE https://www.youtube.com/watch?v=d-7o9xYp7eE
- 3y ago

tjpnz 3y ago

>whether public universities can enforce codes of conduct which may compel speech. Where would such a precedent leave things in terms of codes of conduct and open source?

wredue 3y ago
Or trespassing people who are no longer welcome. The idea that code of conduct can’t exist is nonsense. The idea that it violates free speech is also nonsense, as it has been well settled that you don’t have free speech on private land.
- wmidwestranger 3y ago
  I can imagine codes of conduct are helping somebody and I wouldn't want to spoil their good times but I'm still a little salty that sqlite was forced to change their terms, based loosely on the Benedictine Order Code, so they could have corporate sponsors. My intuition suggests a large and random set of assholes has been replaced by a specific and goal-oriented set of assholes. I'll admit, the internet is everywhere, so every asshole is on the internet. I just remember before the Code of Conduct, there was definitely one less potential layer of assholes above, despite an ever present layer of assholes below, and there seemed to be more crazy and less conformist people. Would write more but I need to go yell at a cloud.
  - wredue 3y ago
    The thing is that most people never ever have to deal with codes of conduct because, as it turns out, treating other with respect, really isn’t a difficult thing to do.
russell_h 3y ago
It would have no effect at all. Public universities are part of the (state) government, so are bound by the first amendment. Open source projects are not part of the government, so their freedom to associate with whoever they choose (with some limitations implied by eg the 14th amendment, but nothing likely to affect currently prominent codes of conduct) is protected by the 1st amendment.