Archive for the ‘Fifth Amendment’ Category
How Democrats In Arizona Are Damaging The Fifth Amendment – The Daily Wire
When a political fever runs hot among government officials, the Bill of Rights is often one of the first casualties. Few fevers have been as hot as the Democrats reaction to January 6.
It is no surprise, then, that the investigation by Democrat Arizona Attorney General Kris Mayes, like that of the Congressional Select Committee in 2022, obliterated a sacred norm. In this case, the chalk outline is around the Fifth Amendment.
I offer this observation as one who recently was compelled to appear in front of an Arizona state grand jury. The sole purpose is for me to repeat my prior invocation of my 5th Amendment right to remain silent in connection with an investigation into my service as an alternate elector for President Trump in 2020. This follows the shameful spectacle of Congress House January 6 Select Committee using footage from its investigatory video depositions to produce a slick TV show in advance of the 2022 elections to publicly shame Republican witnesses who invoked their 5th Amendment rights.
The Bill of Rights were inserted into the Constitution to protect our essential rights, and the Fourteenth Amendment applies them to the states. The Fifth Amendment contains powerful defenses against abuses of power. It includes the right to be indicted by a grand jury for serious crimes instead of at the whim of a prosecutor, prohibits the government from prosecuting someone twice for the same offense, guarantees due process when the government tries to take your life, freedom, or property, and requires the government to pay for any property it takes from you. The Fifth Amendment has one more essential protection: the government cannot force you to testify against yourself.
Importantly, the Supreme Court held in Grunewald v. United States that one of this privileges basic functions is to protect innocent men who otherwise might be ensnared by ambiguous circumstances. The circumstances involving electors in the immediate aftermath of the 2020 election were indeed ambiguous. Alternate electors had been used in Hawaii in 1960, and the votes of John F. Kennedys alternates were ultimately validated long after the election. The day after the 2020 election, liberal commentators Van Jones and Larry Lessig published their opinion on CNN that Biden too should select alternate electors in Pennsylvania because Trump was leading in that states ballot count and the Democrats should contest the election.
Speaking of ambiguity, exactly what crime Attorney General Mayes is investigating was unclear from the face of the subpoena I received: It provided no notice of the authority of the Attorney General to convene this particular grand jury, no notice of the topic being investigated or the laws allegedly broken, and yet it said that I was a target of the investigation and must testify.
Concern that Mayes is overstepping her authority for political gain is not mere speculation. Before her election in 2022, she campaigned on her certainty before her investigation that Arizonas alternate electors committed a crime. Recently, Mayes declared that Democrat attorneys general such as herself absolutely have to get President Biden re-elected. With Arizonas elections only a few months away, consider that Arizonas investigation is somehow still ongoing nearly three and a half years after the events at issue, that other states and the federal government investigated and made their prosecutorial decisions long ago, and Mayes transparently told the press last year that, with regard to the investigation, Were going to make sure that we do it on our timetable.
For these reasons, though I maintain my innocence of any crime, I invoked my 5th Amendment right not to be compelled to testify against myself. Longstanding tradition and practice in both state and federal proceedings provides that once an individual subpoenaed by a grand jury informs the prosecution that the individual intends to assert the Fifth Amendment privilege not to testify, the individual is not compelled to appear before a grand jury for the purpose of invoking the privilege. And yet, I and other Republican witnesses were paraded in front of the grand jury solely to invoke our rights. This has rightly provoked the ridicule of both prosecutors and defense counsel.
There is no substantive evidence in the act of invoking ones Fifth Amendment rights. To force a witness to do so in front of the grand jury is an improper attempt to bias the grand jury and embarrass the witness. In some jurisdictions like the District of Columbia, a lawyer can be disciplined for forcing a witness to appear only to invoke their Fifth Amendment right.
The damage Democrats like Kris Mayes are inflicting on the 5th Amendment, and especially their normalization of its violation for political gain, is shameful and an affront to our Constitution. Repairing this damage must be a priority for Republicans this election year.
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Jake Hoffmanis an Arizona statesenatorin Arizonas 15th district.
NOTE: DC Bar Ethics Opinion 31 is found on page 91 of the linked reference.
The views expressed in this piece are those of the author and do not necessarily represent those of The Daily Wire.
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How Democrats In Arizona Are Damaging The Fifth Amendment - The Daily Wire
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Social Media Platforms Have Property Rights Too – Reason
While pundits and lawyers cross swords over free speech on social media, a quieter yet critically important principle is being ignored: property rights. In addition to violating the First Amendment, the rush to force social media platforms to host content violates the Fifth Amendment as wellin particular, the Takings Clause.
The Takings Clause says that government shall not take private property "for public use, without just compensation." While many are familiar with the clause's importance when the government wants to seize land through eminent domain, courts have also applied this right as a limit on the ability to overregulate property. For example, if a beach town requires the owners of oceanfront properties to let the public walk across their yards to get to the beach, this would require compensation, because the regulation effectively takes the property owner's right to exclude, a cornerstone of ownership.
Likewise, the Takings Clause shields social media platforms from regulations requiring they host content or users they want to exclude. These platforms have as much right to eject unwelcome digital interlopers as homeowners do to stop the government from using their yard as a public right of wayunless they are given just compensation. If states intend to force social media apps to host users and content against their wishes, they will have to pay for it.
Both state and federal laws already treat online platforms as property. All states criminalize unauthorized access to computer systems, often expressly framing these crimes as trespass. Platforms defend their territory with encryption, authentication, firewalls, terms of service, and other digital fences. Laws affirming online platforms as protectable property, alongside the platforms' own fortifications, clearly categorize them as "private property" under the Takings Clause.
Laws that mandate online platforms to accept certain content or users effectively invade private property. And the courts have established that when the government grants third parties access to private property without the owner's consent, that requires compensation. The federal government had to pay a private marina owner in Hawaii before it could be compelled to allow public boating access. Similarly, the Supreme Court ruled just a few years ago that California had to compensate employers after it forced them to let union representatives access their property.
These precedents apply to content moderation laws like those currently challenged on First Amendment grounds. Texas's law, which prohibits "censor[ing] a user, a user's expression, or a user's ability to receive the expression of another" based on viewpoint, does to digital spaces what unlawful regulations do to physical spacesit negates the platform's right to determine its occupants.
One might argue that digital exclusions aren't as tangible as physical ones. Yet imagine a law that mandates private businesses to display campaign signs in their storefront windows. This law would not just violate the businesses' speech rights; it would also clearly violate their property rights to control their own space.
Supporters of regulating social media might point to the Supreme Court's decision in Pruneyard Shopping Center v. Robins, where the Court rejected a takings claim by a shopping mall forced to allow activists to distribute leaflets. The Court reasoned that a few activists wouldn't significantly disrupt a mall's essential purpose. The Court recently indicated that Pruneyard was an exceptional case because shopping malls are "generally open to the public" and lack the kind of terms of service that govern social media platforms.
Pruneyard was wrong to deny shopping malls the right to exclude, but, regardless of that decision, online platforms are not public malls. The core function of a shopping mall is to invite the public to shop. The essence of social media is speech and content. Interference with a platform's ability to control content affects its core purpose. Even owners of traditional public spaces can exclude activities that contradict their business's purpose. Social media platforms should be afforded similar rights under property law.
A win under the Takings Clause would mean that the government cannot require social media platforms to host all content unless they pay for the privilege. Compensation could be hard to calculate, given that the interference is ongoing and the economic effects are complex. Whatever the dollar amount, politicians will struggle to convince taxpayers to commit to a continuous cash funnel from their pockets to Big Tech. A win under the Takings Clause would likely make many regulators rethink their strategies.
As the early abolitionist Arthur Lee once said, property is the "guardian of every other right." Property offers a personal dominion free from undue influence or controlspaces we can each shape to reflect our own values. In defending this for online platforms, we uphold the foundation of liberty and innovation.
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Social Media Platforms Have Property Rights Too - Reason
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Utah high court rules suspects don’t have to provide police with phone passcodes – The Record from Recorded Future News
The Utah Supreme Court ruled Thursday in favor of a defendant who had argued police could not force him to provide the passcode to his phone in order to aid their prosecution.
The states highest court concluded that cell phone passcodes are protected under the Fifth Amendment, which gives Americans the right not to self-incriminate under oath.
The defendant, Alfonso Margo Valdez, had been accused of kidnapping, assaulting and robbing his ex-girlfriend and was initially convicted for the crime.
Subsequently an appellate court ruled that having determined that Valdezs refusal to provide his passcode was protected by the Fifth Amendment the States commentary at trial on Valdezs refusal was a Fifth Amendment violation, according to a characterization from the justices.
The state Supreme Court upheld that ruling, sending the case back to the district court.
Some legal scholars believe Thursdays decision could pave the way to a U.S. Supreme Court case.
UC Berkeley School of Law Professor Orin Kerr posted on social media about the ruling soon afterward, predicting possible U.S. Supreme Court review.
The issue has been controversial with courts splitting nationwide. High courts in Indiana and Pennsylvania previously came to a similar decision as the Utah justices, ruling that compelling defendants to unlock their phone violates their right against self-incrimination. However, New Jersey, Massachusetts and Illinois rulings have held the opposite.
Valdez was convicted in his initial trial, but appealed on the grounds that his phones passcode was constitutionally protected. The appellate court sided with Valdez, saying that supplying the passcode would have been incriminating because it has long been settled that the Fifth Amendments self-incrimination protection encompasses compelled statements that lead to the discovery of incriminating evidence even though the statements themselves are not incriminating and are not introduced into evidence.
The state Supreme Court backed that argument.
Civil rights groups filed an amicus brief in the case, arguing that the State cannot compel a suspect to recall and share information that exists only in his mind.
The realities of the digital age only magnify the concerns that animate the Fifth Amendments protections, the brief said. In accordance with these principles, the Court of Appeals held that communicating a memorized passcode is testimonial, and thus the States use at trial of Mr. Valdezs refusal to do so violated his privilege against self-incrimination.
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Suzanne Smalley is a reporter covering privacy, disinformation and cybersecurity policy for The Record. She was previously a cybersecurity reporter at CyberScoop and Reuters. Earlier in her career Suzanne covered the Boston Police Department for the Boston Globe and two presidential campaign cycles for Newsweek. She lives in Washington with her husband and three children.
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Utah Supreme Court says accused don’t have to share cellphone passwords with police – Salt Lake Tribune
(Francisco Kjolseth | The Salt Lake Tribune) Utah Supreme Court Justice Paige Petersen asks a question during oral arguments at the Utah Supreme Court in Salt Lake City, Tuesday, Aug. 8, 2023. On Thursday, justices decided that individuals do not need to share their cellphone passcodes with police.
| Dec. 15, 2023, 1:00 p.m.
| Updated: 8:35 p.m.
If police obtain a warrant to search your cellphone, are you required to tell law enforcement the password to access it?
The Utah Supreme Court ruled on Thursday that under the U.S. Constitutions Fifth Amendment protection against self-incrimination, you dont have to help law enforcement access your devices, even if they have a judges permission to do so.
Nearly two years after the court first heard arguments in the case, with attorneys rehashing those arguments in March after two new justices joined the bench, the court agreed with the Utah Court of Appeals 2021 decision to reverse a conviction in an aggravated assault, kidnapping and robbery case.
When Alfonso Valdez was arrested for allegedly kidnapping and assaulting his ex-girlfriend, police took his cell phone from his pocket, according to court records. Detectives got a warrant, but could not crack the swipe code to sift through the phones contents.
An officer asked Valdez to help unlock the phone, but he refused, keeping law enforcement from ever accessing it.
Prosecutors later relied on testimony from a detective about Valdezs decision not to cooperate with police, and when giving closing arguments, argued that the resulting lack of evidence undermined his defense. A jury convicted Valdez, and he appealed.
The states two highest courts reasoned that Valdez agreeing to tell law enforcement his password could have amounted to self-incrimination, and he had a constitutional right not to do so.
We agree with the court of appeals that verbally providing a cellphone passcode is a testimonial communication under the Fifth Amendment, Justice Paige Petersen wrote in the decision. All justices on the court joined the opinion except former appeals court judge Justice Jill Pohlman, who recused herself and was replaced by District Court Judge John Walton.
During arguments in front of the Utah Supreme Court, attorneys for the state asserted that Valdezs refusal to share his swipe code was not protected under the Fifth Amendment because they said it could be compared to providing officers with a key, and was not semantic in nature.
Building off of that contention, the state said a passcode wouldnt have given police any meaningful information, except what they already knew the phone belonged to Valdez.
But the court dismissed those points in its decision, with Petersen writing, Here, we have a verbal communication that would have explicitly communicated information from Valdezs mind.
A spokesperson for the Utah Attorney Generals office said in an email, The office is disappointed in the courts ruling and is evaluating options for further review.
Attorneys representing Valdez did not immediately respond to a request for comment.
While the Utah Supreme Court has the final say on matters related to the state constitution, this decision could be appealed to the U.S. Supreme Court because of its focus on a right enshrined in the federal constitution. The high court would then determine whether it wants to hear the case.
Matthew Tokson, a law professor at the University of Utah whose work focuses on privacy and judicial decision-making, said the ruling helps to preserve Utahns privacy in their cellphones against government investigations. Whatever is in your cell phone, if its sufficiently protected by your passcode, is likely to be safe from inspection, and your refusal to open your cellphone for inspection cant be held against you.
Similar Fifth Amendment reasoning likely wouldnt apply to other phone access technologies, like Face ID or Touch ID. Tokson said for that reason, he has personally opted not to sign into his devices with biometric identifiers.
He added, however, that such a precedent may make criminal investigations more difficult by preventing the government from accessing pertinent information, even with probable cause and a warrant.
In the future, case law surrounding the Fifth Amendment and law enforcements technology use, Tokson noted, could impact questions that may arise as artificial intelligence becomes more sophisticated in reading emotions, for example and widely used.
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Utah Supreme Court says accused don't have to share cellphone passwords with police - Salt Lake Tribune
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