While the Fifth Amendment is a crucial marker of individual rights, the lack of clear definitions and changing political landscapes make its application dangerously subjective.
Your right to "plead the fifth" is a constitutional protection against self-incrimination, but it's only one component of the legal provision that safeguards your rights from unjust criminal prosecution. The Fifth Amendment provides protections against double jeopardy, being forced to incriminate oneself, prosecution without a jury of one's peers, and eminent domain. The legal precedents establishing due process protect more than just criminals; everyday citizens are protected from abuse of the justice system.
The provision, in full, dictates: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
In 2019, what are the limitations of these protections? Are there exceptions? What situations would require you to invoke them? What should you say to activate these rights?
While some may see "pleading the fifth" as tantamount to admitting guilt, it symbolizes your protection from self-incrimination. Cornell Law School defines the term to mean, "The act of implicating oneself in a crime or exposing oneself to criminal prosecution." When questioned by law enforcement during an investigation or during a criminal trial, an individual may refrain from answering questions or submitting requested materials to officials if it's believed that doing so may result in new criminal charges.
However, issues unrelated to criminal matters are not always protected from self-incrimination rights. For example, tax issues are not covered under the law, so as to prevent individuals from withholding materials from the IRS. Furthermore, the law becomes murky when external circumstances could easily influence a person's ability to remain silent. Egregious examples of this right being circumvented include forced confessions and unjust interrogations.
As to due process, it's well known that before you can be found guilty of a crime, a grand jury of 16 to 23 people must be presented the case in private and deem that criminal charges justified. While a grand jury acts as "a kind of buffer or referee between the government and the people," an individual has a right to trial by jury. However, the Constitution's vital dictum against citizens being "deprived of life, liberty or property without due process of law" is only defined through a series of court rulings and provisions.
Of note is that due process protections are designed for individuals and application "in each case upon individual grounds." Sadly, this means that whole groups or communities are not, strictly speaking, as entitled to due process. For example, entire student bodies, teachers, or consolidated groups like protesters can be given treatment outside of lawful protections.
Lastly, eminent domain is the restricted power of the government to take private property and convert it into public use. Under the Fifth Amendment, the government can only use this power if they provide the private owners with fair compensation. However, abuse of eminent domain is fairly common.
For example, in 2019, Donald Trump defended his demand for a border wall separating the United States and Mexico under the right of eminent domain. While it was originally meant to be an economic benefit, there are no codified measurements of what constitutes "just compensation." The seizure of land by the government quickly becomes exploitative and a violation of privacy that's paramount to government theft.
While the Fifth Amendment is a crucial marker of individual rights, the lack of clear definitions and changing political landscapes make its application dangerously subjective. From due process to eminent domain, there are more exceptions than clear definitions of "justice."
Here are three crucial ways the digital age complicates your protections under the Fourth Amendment.
When the Fourth Amendment codified citizens' protections against government spying in 1791, Americans couldn't say, "Alexa: turn off the lights." With technology pervasively conducting our daily errands, the amendment against illegal search and seizure is not equipped to protect digital users. In fact, David Cole, a law professor of constitutional law and national security at Georgetown University, critiques, "In the modern digital age, it means very, very little."
To be clear, the totality of the Fourth Amendment reads: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Here are three crucial ways the digital age complicates your protections under the Fourth Amendment:
1. Law enforcement doesn't always require a search warrant to enter your home
When police want to mine your private information on suspicion that you've committed a crime, they have to meet the familiar requirement of "probable cause." Traditionally, they must convince a judge that there is a sound reason to search and/or bug your property for surveillance. True to the wording of the law, your protected personal belongings include your physical body, "houses, papers, and effects."
However, "probable cause" includes the "plain view" clause, wherein authorities have the right to enter your home if they see evidence, contraband, or suspicious materials in your home. In the age of social media, a picture, check-in, or status you post could very well justify law enforcement entering your home without a warrant. The ruling in Katz v. United States stands as the most notable example that qualifies the Fourth Amendment as only applying to situations in which "an individual has a reasonable expectation of privacy." When you're sharing the details of your life on social media sites, you waive much of that expectation.
2. Your personal information is no longer "private" from the government once shared on social media
A series of rulings in the 1960s and 1970s began to add exceptions to the "probable cause" requirement. Namely, the government does not need a search warrant to obtain any personal information that you've already shared with somebody else. Hence, the government can obtain any private information given to credit card companies, banks, or phone companies, because you've technically de-privatized the information by using those services.
Of course the same applies to any and all social media accounts. All the government needs is a subpoena, which experts say is "trivially easy to issue."
3. Your location can be tracked by the government
While it may seem obvious to be wary of broadcasting your location at any given time, some personal devices and social media sites automatically tag and record your location. Your whereabouts cease to be a topic of government surveillance when you share the information willingly (which you do by using digital services). As Justice Alito noted when presiding over the United States v. Jones, social media tools "will . . . shape the average person's expectations about the privacy of his or her daily movements." Traditional protections simply don't apply to what you publicize yourself.
Trump has expressed his intention to repeal the 14th amendment.
President Trump's latest attack on immigration targets the children of undocumented persons by threatening to nullify the writ of birthright citizenship, also known as the 14th Amendment. Legislatively, this is nearly impossible and unheard of; but, most damningly, its patent ridiculousness is alienating both sides of the aisle.
While fatuous celebrity rants may err in understanding constitutional law, as was the case of Kanye West's Twitter fodder to "abolish" the 13th Amendment, a United States President's defective understanding of the constitution is as alarming as it is shameful.
But on Wednesday Trump once again aimed his tweets directly at his blind spot for facts, underscoring that he's impenetrable to shame. He claimed that "so-called Birthright Citizenship...is very unfair to our citizens. It is not covered by the 14th Amendment because of the words 'subject to the jurisdiction thereof."
The tweet was precipitated by an interview with Axios on HBO, which was released on Tuesday. Trump evinced his ignorance on constitutional law by stating, "It was always told to me that you needed a constitutional amendment. Guess what? You don't." Convinced, he added, "You can definitely do it with an act of Congress. But now they're saying I can do it just with an executive order."
No, of course he can't. In brief, the U.S. policy of jus soli dictates that an individual has a right to citizenship in the country he/she is born. This "Citizenship Clause" is codified in the 14th Amendment, which reads, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." Depending on your interpretation of the constitution, no matter if you see it as elastic or fixed, legal precedent set by the U.S. Supreme Court in 1898 has upheld the Citizenship Clause as we know it.
Trump went on to misattribute the "law of soil" as a singularly American mistake, stating, "We're the only country in the world where a person comes in, has a baby, and the baby is essentially a citizen of the United States for 85 years with all of those benefits." That's incorrect; over 30 other nations recognize birthright citizenship. "It's ridiculous. It's ridiculous. And it has to end," Trump went on.
Of course, rudimentary awareness of American history reminds us that constitutional amendments are complex pieces of legislation which are subject to checks and balances. If President Trump truly believes he can solely command an amendment change, House Speaker Paul Ryan clarified in a radio interview that he "obviously cannot do that." In fact, Ryan spoke on behalf of all conservatives as fully dissenting from Trump's views.
"You obviously cannot do that. You cannot end birthright citizenship with an executive order. We didn't like it when Obama tried changing immigration laws via executive action, and obviously as conservatives, we believe in the Constitution," Ryan told WVLK radio. "I'm a believer in following the plain text of the Constitution, and I think in this case, the 14th Amendment's pretty clear, and that would involve a very, very lengthy Constitutional process." Ryan added, "I believe in interpreting the Constitution as its written."
With midterm elections approaching, Trump's turgid misrepresentations of immigration law can only be in hopes of rallying votes from anti-immigration supporters and encouraging strife between republicans and democrats. Dem. Sen. of Virginia, Mark Warner said, "This is simply an attempt for Donald Trump, who wants to do anything possible to bring back fears around immigration, to use that as a political tool in this last week before the election."
He adds, tellingly, "This is again, where a President's words matter. The Constitution is quite clear that no one, including the President of the United States, is above the law."
Indeed, the President's stream of inflammatory rhetoric only serves as a distraction from his unfulfilled promises and his administration's failings. For instance, two new studies reported by The New York Times indicate growing anti-Trump sentiments in the top GOP district, suggesting that voters are alienated by "endless lies and hate-mongering." Greg Sargent at The Washington Post adds, "One likely answer is that the story Trump has told about the economy - and the country - just isn't resonating in many of these districts."
That Trump took to Twitter to repudiate Paul Ryan's reality check is par for the course, as was his ad hominem attack questioning Ryan's credentials to comment on birthright citizenship.
Contrary to popular belief, there is no hate speech exception to the First Amendment.
The social networking site Gab has been taken offline since it was confirmed that the Pittsburgh synagogue gunman used it to post anti-Semitic hate speech and to threaten Jews. The site is popular with the far right and describes itself as "an ad-free social network for creators who believe in free speech, individual liberty, and the free flow of information online. All are welcome." Gab was originally created by conservative businessman Andrew Torba in response to Twitter clamping down on hate speech in 2016.
Robert Bowers logged onto the platform shortly before killing 11 people at the Tree of Life synagogue on Saturday to post the following.
Consequently, the site has been abandoned by payment processing firms PayPal and Stripe, as well as hosting service Joyent and domain register GoDaddy. A statement on Gab's website Monday read that the platform would be "inaccessible for a period of time" as it switches to a new web host. It said the issue was being worked on "around the clock." The statement went on to defend the website, saying, "We have been systematically no-platformed [and] smeared by the mainstream media for defending free expression and individual liberty for all people."
Regarding Bowers' use of the site, Torba said, "Because he was on Gab, law enforcement now have definitive evidence for a motive," Mr. Torba wrote. "They would not have had this evidence without Gab. We are proud to work with and support law enforcement in order to bring justice to this alleged terrorist."
But companies associated with Gab were not satisfied by the site's cooperation with law enforcement and continue to abandon the site. PayPal, the platform Gab used to manage donations from users, said in a statement, "When a site is explicitly allowing the perpetuation of hate, violence or discriminatory intolerance, we take immediate and decisive action."
A tweet from Gab on Monday morning implied that the people behind the site believe themselves to be a victim of intentional defamation.
Set aside the questionable intent of the decidedly tone-deaf tweet; and, legally, Gab did not do anything wrong. Contrary to popular belief, there is no hate speech exception to the First Amendment. The Supreme Court reaffirmed this in 2017 in Matal vs. Tal, deciding, "Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful...the proudest boast of our free speech jurisprudence is that we protect the freedom to express 'the thought that we hate.'" Despite this, many people are calling for the permanent removal of the site, as Wired points out, "Momentary political rage can blind people into abandoning sacred values."
However, the internet inarguably contributes to the creation of extremists, as we have seen in the case of terrorists, rapists, school shooters, and now the synagogue shooter in Pittsburgh. Sites like Gab allows users to easily find other people who share their most extreme viewpoints, inevitably normalizing disturbing rhetoric the user may have otherwise suppressed or self-corrected in time. Therefore, sites like Gab become polarizing spaces that can help to sew the kinds of ideas that lead to violent acts. But, if there's no legal action to be taken against a site like Gab without damaging free speech, what can be done?
Justice Anthony Kennedy said in his opinion following Matal vs. Tal, "A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government's benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society."
While what exactly those safeguards are remains unclear, one can speculate that what Kennedy meant is exactly what Gab calling unjust now. As previously mentioned, the site has been abandoned by all of the companies whose services were needed for the site to remain online. And just as Gab has the right to allow freedom of expression on their site as they see fit, these companies are also free to express themselves in refusing to work with websites that allow hateful rhetoric.
Indeed, the conversation surrounding the fate of Gab has revealed that freedom of speech online is not decided by the government, but by social media platforms, servers, and domain registers who are free to decide with what kind of opinion their company wants to be associated. This also means that, on some level, what is seen as acceptable online is driven by consumer outrage and approval.
For example, after facing criticism for allowing users to post prejudiced content, larger social networking sites like Twitter and Facebook have been actively fighting against hateful rhetoric with varying degrees of success. In 2016, a code of conduct was established by the European Union in collaboration with Facebook, Twitter, YouTube, and Microsoft. The code is aimed at fighting racism and xenophobia and encourages the social media companies to remove hate speech from their platforms.
So, instead of outraged Americans calling for the legal suppression of sites like Gab — an impossibility if the First Amendment is to remain intact — the real power of the individual to fight hate speech is in one's ability to support or boycott companies based on how they handle free expression.
Brooke Ivey Johnson is a Brooklyn based writer, playwright, and human woman. To read more of her work visit her blog or follow her twitter @BrookeIJohnson.
Why the only amendment never brought before the supreme court may be more important than you think
You'd be hard pressed to find someone living in the U.S.A. (and, perhaps in Russia) who could not tell you that the Second Amendment involved the right to bear arms. And, most people understand that something in the Bill of Rights protects them against unlawful search and seizure, even if they don't know that it's the Fourth Amendment that does so. But sandwiched in between these two celebrity amendments is the all-but-forgotten Third Amendment. Since its inclusion in the Bill of Rights (the first 10 amendments to the constitution), the Third Amendment has been the subject of a small handful of cases, and not one of them has gone before the Supreme Court. Here it is:
Getting to know your Constitution and the rights it guarantees you.
Can you recite the five main freedoms protected by the First Amendment? If not, you aren't alone. The New York Times, citing a recent study by the First Amendment Center at Vanderbilt University, revealed that just over half the people surveyed knew that our First Amendment protects freedom of speech, under 25% knew that it protects freedom of religion, under 20% knew that it protects freedom of the press, 14% knew that it protects freedom of association and only 6% knew that it protects the right to petition the government for grievances. Yet another survey conducted by the Annenberg Public Policy Center found that 37% of Americans could not even name one right protected under the First Amendment. Back in 2006, one in four Americans could name one right, but more than half could name at least two members of the cartoon family, the Simpsons.
Despite being the highest court in the land, let's remember that Supreme Court decisions can be—and have been—overturned.
The Supreme Court's handed down a handful of controversial decisions.
These include Obergefell v. Hodges, which legalized same-sex marriage in all 50 states. As expected, many on the right were quick to criticize the Court. But the Supreme Court isn't a newbie. Justices, both past and present, have handed down disruptive decisions.
But these decisions, while irrevocable, are not exactly permanent.
In 2008, District of Columbia v. Heller had many on the left up in arms. This decision stated that the Second Amendment guarantees American citizens the right to a firearm for personal safety.
And of course, there is the most famously debated Supreme Court decision: Roe v. Wade. The 1973 case legalized abortion across the nation. Whether you agree with these decisions or not, they are the law. The Supreme Court has the final say in the federal court system. While their decisions are irrevocable, they're not necessarily permanent. Under the Constitution, there are three ways to overrule a Supreme Court decision.
1. Congressional Statute
If the Supreme Court has struck down all or part of a federal statute, Congress can go back and adjust the statute to their liking. This is often used to supplement or augment Court decisions. For example, the Supreme Court decided in the 2000 case FDA v. Brown & Williamson Tobacco Corp that the FDA didn't have the authority to regulate tobacco. Congress changed that with the Family Smoking Prevention and Tobacco Control Act of 2009.
Until a case concerning this federal statute comes before the Supreme Court, Congress has the final say.
2. Constitutional Amendment
The Supreme Court has the final word on the meaning of the Constitution. But there is a process of amending the Constitution. Article Five of the Constitution lays out the specific process. Amendments can be proposed by Congress, with two-thirds approval in both the House and the Senate. States can also propose them with a two-thirds majority, and the holding of a convention for proposing the amendments. Once proposed, the amendment must be ratified by a three-fourths majority of the states. The voting to ratify or reject the proposed amendment can take place in state legislatures or state conventions.
Since the adoption of the Bill of Rights, 17 amendments have been ratified. One principle example of a Constitutional amendment overturning a Supreme Court case is the Sixteenth Amendment.
In Pollock v. Farmers' Loan and Trust Company, the Supreme Court declared a progressive federal income tax unconstitutional. In 1913, the Sixteenth Amendment was ratified — completely negating this decision.
3. The Supreme Court
Finally, the Supreme Court can overrule itself. This is probably the simplest, if most unlikely, avenue. The most famous example of this is Brown v. Board of Education. This landmark case declared racial segregation unconstitutional in public schools. This case directly contradicts a case decided almost 60 years prior called Plessy v. Ferguson, which began the legal standard of "separate but equal" for segregation. But the Supreme Court doesn't change its mind often. The Brown v. Board decision was issued almost 60 years after Plessy.