I believe that testimony can be forced if the state waives the right to
prosecute for any crimes revealed. I.e. if immunity is offered they can force
you to speak.
On Aug 17, 2012, at 10:34 AM, Phil Lee <maryland_al...@yahoo.com> wrote:
> I intended to give one example where the "right to not speak", if it existed
> as a Constitutional right, would have an impact -- courts order journalists
> all the time to reveal sources. Also, there would be no need for an
> amendment protecting against forcing a person to witness against himself if
> this more general right existed. And Congress would not be able to require
> witness to invoke the 5th amendment to all questions or none if a person had
> the right to speak or not as he chooses.
>
> If I think Burger King has better fries than Wendy's, the saying, or not, of
> my opinion may not be subject to government prosecution -- it is my right to
> say my opinion under the Constitution. But no one cares if I choose not to
> say my opinion and that choice needs no protection. If a "right not to
> speak" exists, it must have a significant effect -- what is it?
>
> Also, if you are a member of the militia, an early Congress thought it could
> compel you to own a gun -- I don't know if that was ever contested in court.
>
> Phil
>
> From: "Volokh, Eugene" <vol...@law.ucla.edu>
> To: List Firearms Reg <firearmsregprof@lists.ucla.edu>
> Sent: Friday, August 17, 2012 1:20 AM
> Subject: RE: Background intelligence
>
> Well, try to speak in court if you are a witness after the
> judge orders you to be quiet. Testimony is an area where both speech
> restrictions and speech compulsions are routine.
>
> This isn’t to say that Prof. Blocher’s argument is sound –
> analogies between different constitutional provisions will only take you so
> far. (Plus there are counteranalogies – the right to jury trial, unless I’m
> mistaken, has specifically been held not to include the right to waive a jury
> trial.) It’s just that in the First Amendment context, the right not to
> speak is usually (not always) as protected as the right to speak; the
> objection should be to applying it to the Second Amendment.
>
> Eugene
>
> From: firearmsregprof-boun...@lists.ucla.edu
> [mailto:firearmsregprof-boun...@lists.ucla.edu] On Behalf Of Phil Lee
> Sent: Thursday, August 16, 2012 9:25 PM
> To: Joseph E. Olson; List Firearms Reg
> Subject: Re: Background intelligence
>
> "The First Amendment, for example, guarantees both the right to speak and the
> right not to speak."
>
> Try to "not speak" if you are a reporter trying to protect the ID of a source
> after ordered revealed by a judge.
>
> Phil
>
> From: Joseph E. Olson <jol...@gw.hamline.edu>
> To: List Firearms Reg <firearmsregprof@lists.ucla.edu>
> Sent: Thursday, August 16, 2012 10:54 PM
> Subject: Background intelligence
>
> I've just learned that I'll be on a panel with him at the Univ. of Wisconsin
> in early November. Anyone know him or his work?
> ****************************************************************************************************************
> Professor Joseph Olson, J.D., LL.M.
> o- 651-523-2142
> Hamline University School of Law (MS-D2037)
> f- 651-523-2236
> St. Paul, MN 55113-1235
> c- 612-865-7956
> jol...@gw.hamline.edu
> http://law.hamline.edu/constitutional_law/joseph_olson.html
>
>
> +++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
> Associate Professor Joseph Blocher’s principal academic interests include
> federal and state constitutional law, the First and Second Amendments,
> capital punishment, and property.
> He joined the Duke Law faculty in 2009. Before coming to Duke, he clerked for
> Guido Calabresi of the U.S. Court of Appeals for the Second Circuit and
> Rosemary Barkett of the U.S. Court of Appeals for the Eleventh Circuit. He
> also practiced in the appellate group of O’Melveny & Myers, where he assisted
> the merits briefing for the District of Columbia in District of Columbia v.
> Heller.
> Articles:
>
> The Right Not to Keep or Bear Arms, 64 Stanford Law Review 1-54 (2012)
>
> Categoricalism and Balancing in First and Second Amendment Analysis, 84 New
> York University Law Review 375-434 (2009)
>
> Heller's Problematic Second Amendment Categoricalism, The Legal Workshop
> (October 2, 2009)
>
> _______________________________________________
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