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Comment by patrickmay | Hacker News Reader

Having read some additional sources, the justification for forcing the three individuals to speak is that they were given immunity from prosecution by the grand jury. This supposedly prevents them from taking the fifth, because they can't incriminate themselves. That smells like an attempted end run around the constitution.

What immunity doesn't address is the individual's first amendment right to freedom of speech. Freedom of speech must include the freedom to remain silent. Nothing in the constitution gives the government the power to compel expression.

Fourth amendment protections against search and seizure should apply as well. The government is trying to force these people to provide the contents of their minds. Again, there is no constitutional justification for this.

The constitution sets out strict limits on government power. This use of the grand jury system is a clear violation of those limits and a moral outrage.

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>Having read some additional sources, the justification for forcing the three individuals to speak is that they were given immunity from prosecution by the grand jury. This supposedly prevents them from taking the fifth, because they can't incriminate themselves. That smells like an attempted end run around the constitution.

This is pretty standard and has been for (at least) decades. The constitutional injunction is against self incrimination. You can be forced to testify against others, and a whole lot of people have been thrown in jail over the years for refusing to do so.

>Freedom of speech must include the freedom to remain silent.

Why would you think that?

>Fourth amendment protections against search and seizure should apply as well.

This is beyond weak as a constitutional argument.

>>Freedom of speech must include the freedom to remain silent.

>Why would you think that?

The same reason that atheism is covered under freedom of religion.

That was purely an invention of the courts. They haven't invented the freedom of speech to remain silent. Not yet, at least.

From the 6th Ammendment, http://en.wikipedia.org/wiki/Sixth_Amendment_to_the_United_S...

> In all criminal prosecutions, the accused shall enjoy the right [...] to have compulsory process for obtaining witnesses in his favor...

Further reading: http://en.wikipedia.org/wiki/Compulsory_Process_Clause

So the Constitution is fairly explicit that courts have the power to compel testimony. That's not to say that the power isn't be abused, or at least used in a fashion not originally intended. But given the directness of this statement of a court power, your arguments against are unconvincing, since they rely on interpretations that are as yet unproven (like the right to silence).

The courts are generally more empowered than normal government institutions, because they are only invoked when other rights (may) have already been violated. The pursuit of truth, and in particular the pursuit of innocence of an accused party, may occasionally trump individual civil liberties.

Unless I missed something big from the article, no charges have been filed.

Therefore the 6th does not apply. Habeas Corpus should in theory apply, if it is still in the US code - not sure about that.

Nothing in the constitution gives the government the power to compel expression.

Courts are invested with the power to try cases. When someone swears to 'tell the truth, the whole truth, and nothing but the truth,' they're agreeing to express themselves to an organ of the government. The constitution doesn't forbid lying, but that doesn't grant you the freedom to engage in perjury.

This use of the grand jury system is a clear violation of those limits and a moral outrage.

I wouldn't rely on Russia Today for my legal analysis if I were you. The Validimir Putin Press Agency is not really in a position to report objectively on the theory or practice of fair trials, given the lamentable state of the Russian legal system.

What facts does the RT article have wrong? I've read similar accounts of this case from other sources as well.

Well, leaving out the fact of an immunity deal is a huge omission. EDIT: immunity granted by the court, rather than offered by prosecutors.

And they quote one of the parties complaints about the time when the GJ was set up without mentioning whether it was set up specially or just in line with the normal calendar schedule. The jury in a trial is specially convened for that case. Grand juries typically sit for several months at a time and issue indictments on whatever happens to come before them. They're completely different from trial juries.

True, those are important facts about the case.

>Grand juries typically sit for several months at a time and issue indictments on whatever happens to come before them.

That's true, but grand juries can be convened for a specific issue as well.

> When someone swears to 'tell the truth, the whole truth, and nothing but the truth,' they're agreeing to express themselves to an organ of the government. The constitution doesn't forbid lying, but that doesn't grant you the freedom to engage in perjury.

These three activists didn't lie or take an oath - they simply refused to testify. You could argue that the courts' power to try cases allows the govt to imprison people to coerce testimony, but that's a different argument.

> I wouldn't rely on Russia Today for my legal analysis if I were you. The Validimir Putin Press Agency is not really in a position to report objectively on the theory or practice of fair trials, given the lamentable state of the Russian legal system.

And yet that logic never stops US papers from reporting on other countries' legal systems...

There are sources besides RT for this news - you can google them.

Please read the first line of the grandparent comment about how information from other sources establishes that the three were given immunity from prosecution. In other words, they made a deal with prosecutors to testify.

No they didn't, all three have been very upfront about their unwillingness to testify.

You don't have to consent to be given immunity.

After digging about a bit, I find I was mistaken - the court granted immunity but exercised its power to compel testimony by subpoena. Still, the court is not exceeding its authority in that area. Subpoenas do not viol;ate the constitution.

Although I'm not defending the government's actions, the fourth and fifth amendments only protect you from your own testimony or your own illegally-seized things being used against you. People can be, and frequently are, forced to testify against others against their will. That's the purpose of a subpoena.

I haven't read the "additional sources" you speak of, but if true, your first, fourth and fifth amendment arguments don't hold up.

Edit: jstalin, I stand corrected. Looks like immunity is often forced upon people.

Not really. You can have immunity forced on you so that the fifth amendment no longer applies. Then they can force you to testify, even against yourself, but they can't use that testimony or anything derived from it against you. The fifth amendment only protects you from being forced to incriminate yourself.

http://en.wikipedia.org/wiki/Kastigar_v._United_States

Has anyone been charged yet in this case? If not, Kastigar v United States does not apply.

The fourth amendment protects against "unreasonable" searches and seizures.

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