Evening star. [volume] (Washington, D.C.) 1854-1972, 1956-10-14
QUESTION
Extent Of Right Not to Speak Poses
Complex Civil Liberties Problem

stresses the approach to the Fifth
Amendment as broad right not
to speak against ones will. One Of
the most potent thoughts that was
turned loose by this booklet is that
the Fifth Amendment privilege is
shield for the innocent" as well
as the guilty.
This thought made quite some
impression in the Supreme Court.
In the Slochower decision, the SUI
preme Court referred to this book
let in Saying: THE privilege serves
to protect the innocent who other
wise might be ensnared by ambigu-
Gus circumstances"
In the Ullman case at the same
session of the Supreme Court,
where the court upheld the consti-
nationality of the act requiring per-
sons to speak when they have been
granted immunity from criminal
prosecution, Justice Black argued
in dissenting opinion that the
Fifth Amendment should protect a
person not only from actual GRIM
inal prosecution but also from in
fanny, loss of job, denial of passport,
and other potential penalties which
might follow from his compulsory
testimony. And Justice Douglas
said. in dissenting from the same
decision:
THE guarantee oeoinst seIf-inerimino-
tion contoined in the Fifth Amendment
is not only protection against eonvie
tion ond prosecution, but safeguard Of
conscience and human dignity and free
dom Of expression os we'll. The Con-
stitution places the right Of silence
beyond the reach Of government"
A Limited Privilege?
The other camp declares that the
Fifth Amendment gives not broad
right but a limited privilege. Its
starting point is the principle that
there is a general duty to speak
and give information in response to
official inquiries. The Fifth Amend
ment privilege, this group says, ex-
cuses a person from this general
duty to speak only where speaking
would tend to subject him to Grim
inal prosecution Constitutionally
and legally it does not extend
beyond this.
To the idea that the Fifth
Amendment should be shield for
the innocent" this camp replies:
From the very first it has been
recognized in major Supreme Court
decisions and elsewhere that the
Fifth Amendment privilege may be
pleaded only in good faith; that is,
when it is actually believed that
speaking may subject the speaker
to criminal prosecution.
In the Arthur Miller situation. in
this view, the privilege to be silent
does not legally apply since i'm
munity from standardization is
not even claimed. Against the argu-
ment that he should be allowed to
remain silent as matter of indI-
vidual conscience and personal be-
liefs, this camp would place as a
much more important conSidera-
ton his civic duty to give informa-
ton and the Governments need
and right to have it.
In the Slochower type of case,
the public employe receives his i'm
munity from self-incrimination
when he pleads the Fifth Amend
ment before the official body ques-
tioning him. He thus protects him
self from prosecution. But, in view
of this second group. by exercising
his privilege under the Constitution
he has also failed in his civic duty
to give information required by a
public body. The breach of so i'm
portant a duty to society is rated
as conduct unbecoming public
official and reasonable cause for
firing him. The argument is that
firing is not criminal punishment
for pleading the Fifth Amendment
but exercise of the administrative
power possessed by governmental
unit to rid itself Of an undesirable
employee. If the action tends to dis
courage use of the Fifth Amend
ment privilege, still this rightful
governmental power should not be
subordinated to the purely personal
privilege Of protecting ones self
against criminal prosecution.
The Supreme Court will certain
ly have opportunities in the near
future to decide which Of these
two opposing approaches to the
Fifth Amendment it will support.