Surveillance and the First Amendment

Judge Anna Diggs Taylor takes a rather peculiar view of the First Amendment. (Her view of the Fourth Amenmendment is more easily explicable, though comprehensively wrong, as will be shown in another column).

She seems to think that the First Amendment not only guarantees freedom of speech, but immunises people against any consequences of what they say. If people fear that the government might be listening in on their telephone conversations it will make them afraid to speak their mind. Even this problem she addresses the wrong way round, by seeking to suspend the constitutional powers of the President, rather than granting injunctions against the idiots who spread unsubstantiated rumours about the government listening in on people's phone calls.

But if we take seriously Judge Taylor's reading of the First Amendment, the consequences are far reaching. Jon Mark Karr's words - confessing to a role in JonBenet Ramsey's death - will be inadmissable in court. No-one can be prosecuted on the basis of their words, or people might fear to tell the truth about what they have done.

Of course, what the First Amendment really says is that you cannot be prosecuted FOR saying something. It does not mean that what you say cannot be evidence of another and substantive crime.

No-one is insulated from the consequences of their actions or their words. Some actions constitute crimes, and some words constitute evidence of crimes.

Quentin Langley is editor of an academic at the University of Cardiff and is a columnist with Campaigns & Elections.

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