1st Amendment
Case Law
Case Law
The majority cites two potential exceptions to 1st amendment protections to pure speech.
True Threats and Incitement
The holding of the Court in Schmerber v. US
"the drawing of blood for an alcohol analysis test without consent did not violate a DUI suspect’s privilege against self-incrimination because" compelling ‘real or physical evidence’ does not violate [the 5th amendment]”
The name of the victim in the case.
Bobbi Bronner / Ms. Bronner
Even were the act of searching Denolf's phone to be considered "testimonial" the majority argues it would still be constitutional; based on what doctrine established in Fisher v. US
Foregone conclusion
In Brandenburg v. Ohio the Court delineated advocacy from incitement when it meets these two elements.
When it "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action”
This state Supreme Court ruled that prohibitions on suicide encouragement is not incitement and therefore must pass strict scrutiny; because incitement requires "lawless action" and no law prohibits suicide.
Minnesota / State v. Melchert-Dinkel
The grounds on which the 9th circuit found the compulsion of fingerprint unlocking a phone to not be privileged by the 5th amendment.
Because it is a physical act rather than a verbal communication
The statute under which Mr. Denolf being chargerd.
Olympus Public Law 417 (half points for involuntary manslaughter)
These circumstances would allow the government to compel incriminating testimony from a suspect.
If the state already has knowledge of the facts being confirmed by the compelled testimony: foregone conclusion doctrine
Fisher v. United States enumerated three requirements to implicate the privilege against self-incrimination.
(1) compelled by the government, (2) to make a testimonial communication, (3) that is incriminating
This case established the recklesness standard which based whether communications were true threats on the subjective view of the recipient.
Counterman v. Colorado: recklesness requires only that the state prove that "the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence".
Doe v. US stipulated these requirements for a given communication to be considered "testimonial"
“in order to be testimonial, an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information."
The app Mr. Denolf used to send his hateful messages.
ChatAPP
Should the Court deem DeNolf's speech as privalaged under the 1st amendment, how does the majority assert that his communications are still punishable.
They assert that the conduct of verbal harassment and encouragement is incidental to the speech itself, and can still be regulated.
U.S. v. O'Brien established that when speech and conduct are intertwined regulation of the non-speech elements is justified should it meet four elements.
[1] if it is within the constitutional power of the government; [2] if it furthers an important or substantial government interest; [3] if the government interest is unrelated to the suppression of free expression; and [4] if the incidental restriction on alleged (Only need 3 for full points)
Brandenburg v. Ohio articulated what elements as delineating advocacy from incitement.
Brandenburg stipulates that incitement is only proscribable when it is intended and likely to produce "imminent lawless action". But Olympus has no law against suicide.
In US v. Hubbell the Court found that a subpeona requring a businessman to produce business records failed the foregone conclusion doctrine for this reason.
The subpoena did not specify any specific documents but rather required the businessman to compile records only he knows the specic contents, existence, and locations of. Doing so requires the businessman to utilize “the contents of his own mind”.
This morbid statement was both a sticker on Denolf's phone and tattooed on his arm.
"Visualize Death"
Why does the dissent assert that the precedent of Snyder v. Phelps entitles DeNolf to greater constitutional protections.
Snyder established that pulbic speech was entitled to greater protections than private speech. The dissent argues that suicide is a matter fit for public debate.
The elements of involuntary manslaughter listed in the case packet.
(1) The defendant caused the victim’s death; (2) the defendant intended the conduct that caused the victim’s death; and (3) the defendant’s conduct constituted disregard for probable harmful consequences to another.
Only cross burning intended to intimidate would be a "true threat", and the state would have to prove this to criminalize a given act.
The Court has only ever applied the foregone conclusion doctrine in this context.
Cases involving compelled document production.
Stipulated as the reason Mr. Denolf choose to purchase an X-Phone in particular.
The X-Phone is unhackable / not subject to "mail break"
Should the Court find DeNolfs commmunications to be protected speech, the Majority argues his prosecution is still constitutional for what reason. (Elaborate)
It passes strict scrutiny.
Compelling interest: life / preventing suicide
Narrowly Tailored: Restricts no discussion whatsoever, only reckless pressuring of a person to commit suicide
The orthodox view is that the forgone conclusion doctrine applies when the government can establish their knowledge of these elements of the compelled production.
A specific description of what is to be produced, knowledge of its' existence, authenticity, and possession.