legal essays on right to silence

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The Right to Silence for Criminal Suspects Under the Law

The Right to Remain Silent

The “right to remain silent” is well-known to anyone who watches movies or TV shows about police, but the constitutional rights that the statement represents are not always very well understood. The Fifth Amendment to the U.S. Constitution protects people from being compelled to give testimony that could incriminate them. This is not the same as saying that a person has a right to silence at all times. In some situations, police may use silence itself as incriminating evidence. The Supreme Court has held that police must stop questioning suspects once they assert their right to counsel , but it has also held that a person must affirmatively invoke the right to silence.

Courts have admitted the paradoxical nature of the right to remain silent – an individual must verbalize that they are invoking their right to remain silent.

Silence at Trial

The Fifth Amendment states that “[n]o person...shall be compelled in any criminal case to be a witness against himself.” The right to silence is among the Miranda rights that police must recite during or shortly after an arrest. The primary application of this right occurs during criminal court proceedings , where prosecutors are not allowed to call the defendant as a witness. The defendant has sole discretion over whether to testify at trial, and prosecutors may not comment if the defendant decides not to do so. Griffin v. California , 380 U.S. 609 (1965); Harris v. New York , 401 U.S. 222 (1971).

An exception to the right against self-incrimination in court applies if prosecutors have granted the person immunity from prosecution. The Supreme Court has held that the immunity provisions of federal law offer the same protections as the Fifth Amendment. Kastigar v. United States , 406 U.S. 441, 462 (1972).

Silence During Police Interviews or Interrogations

The question of whether a person has a right to silence, essentially meaning a right to refuse to speak to police or answer their questions, has no simple answer. As a very general rule, no one is obligated to speak to the police, but even non-verbal communication can, in some situations, be incriminating.

The Supreme Court’s decision in Miranda v. Arizona , 384 U.S. 436 (1966), which gave us the well-known Miranda warnings, requires police to cease any and all interrogation once a person has invoked the right to an attorney, and it holds that any statements made afterwards are inadmissible in court. This only applies, however, after police have advised the person of their Miranda rights, which they are only obligated to do once they have placed that person under arrest.

“I am exercising my right to remain silent.”
“I will not speak until I talk with my attorney.”
“I am invoking my Miranda rights.”

Failure to Invoke the Right to Silence

Two recent court cases illustrate situations when a person’s silence could be used against him or her, without violating the Fifth Amendment or Miranda . Both involve failure by the defendant to assert the right to silence.

The Supreme Court’s decision in Salinas v. Texas , 570 U.S. __ (2013), dealt with a situation in which the defendant spoke to the police voluntarily during a murder investigation, meaning that he was not under arrest when the purportedly incriminating event occurred. When the police officer asked the defendant about his possible involvement in the murder, the officer testified, the defendant became very quiet, and his entire demeanor changed. Police offered the defendant’s silence and behavioral change as incriminating evidence. The court held that police did not violate the defendant’s rights against self-incrimination, in part because the defendant did not expressly invoke his Fifth Amendment rights.

The California Supreme Court reached a similar conclusion in a recent decision, People v. Tom , No. S202107 (Cal., Aug. 14, 2014), which involved evidence of literal silence after an alleged drunk-driving accident—specifically, that the defendant “expressed no concern about the well-being of the other people involved in the collision.” Since this lack of concern occurred after the defendant’s arrest but before he received Miranda warnings, and because he did not expressly assert his right to silence, the court held that his rights were not violated.

Last reviewed October 2023

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Academic Essays

Decline of the right to Silence – Does it threaten fair trials?

Code C of the Police And Criminal Evidence Act 1984 [1] provides that a person, who is reasonably suspected of an offence must be cautioned before any questions of the offence is put to him. Additionally, it provides that their answers or their silence may be given to a court in prosecution [2] . By law, suspects are allowed to remain silent upon being questioned, and this right is deemed to be a cornerstone of the notion of fairness in the Criminal Justice System in the United Kingdom [3] . However, while such a right is enshrined by the values of Article 6 of the European Convention of Human Rights [4] , it is not necessarily seen as an absolute right [5] . The recent years have seen a decline of such rights [6] . The balancing act of this right, is done against the values of the due process and crime control models of criminal justice [7] . The values under the ‘due process’ model suggests that it should be up to the prosecution to find its own evidence in an adversarial trial system. On the other hand, the ‘crime control’ model suggests that only the guilty have something to hide and that the innocent can only benefit from helping the crown [8] . This essay will go on to assess the advantages and disadvantages of the right to silence, by analysing its use in context and by weighing the two models of criminal justice against each other.

A catalyst for the erosion of the right to silence was the enactment of the Criminal Justice and Public Order Act 1994 [9] . The Act suggest that individuals who rely, for their defence, upon a fact, that they did not provide to the police when charged and cautioned, will allow for their silence during their interview to be adversely inferred by the Courts [10] . Similarly, failing to testify at court [11] , failing to provide explanations for incriminating marks or objects [12] or failing to provide explanation for their presence near the scene of crimes [13] , can lead to such adverse inferences being drawn. Nevertheless, it is still believed by some that if there is no compulsion to answer, that the right is protected [14] . Furthermore, it must be noted that the CJPO disallows convictions simply on the basis of adverse inferences from silence [15] . It was made clear by the courts that a jury must be directed that they could only attribute silence to the accused’s guilt only if it was sensible to do so [16] .

Even while there is a plethora of safeguards under the Act and keeping in mind that the Court is always there to help juries in whatever way necessary, it remains important to recognise that juries and fact-finders, as a sociological problem, have always managed to hold an accused’s silence against him [17] . Historically, there seems to be a judicial hostility towards the right of silence. The House of Lords has even held the view that it is more likely that an innocent man would answer police questions [18] .

Upon an arrest, it is usually the case that a suspect is questioned. By law, the police are allowed to hold a suspect in custody until they speak, barring certain limits under PACE-1984. Coupled with the fact that being held over-night in custody is usually a suspect’s biggest fear [19] , this often pushes the suspect into cooperating with the police, even at the risk of self-incrimination [20] , a right that the European Courts have upheld and defended [21] . Furthermore, it was also held that the prosecution would be able to build a case against the defence without resorting to coercive means [22] . This position was deemed to be very important and it was held that such were the derivations from Article 6 [23] . The argument here, is that such an ignorance of the individual’s right to silence tramples on some of their basic rights during trials. This betrays the fundamentals of a fair CJS and has the potential to be abused in the future as a means of a cultural force of habit.

One major argument in favour of the right of silence is that it allows for a balance between the awesome power of the state and that of the accused. By holding on to their right of silence, it was though that a defendant would be able to reserve his or her defence until after the prosecution had made out a prima facie case against them. This supports the presumption of innocence, another cornerstone of the British CJS [24] . Given the fact that the prosecution are not expected to reveal their evidence against the accused before trial, the Right of Silence upholds the defence’s privilege against self-incrimination as argued above [25] .

As it stands, such ideas were heavily undermined by new statutory obligations on the defence to produce outlines of their case or risk adverse inference [26] . However, vague outlines were of little use to prosecution [27] . Furthermore, the defence is now expected to not only comply with this regulation, but also provide statements regarding the general nature of defence, indicate points of law that they intend to rely on and provide details of alibi witnesses [28] . Additionally, the defence is expected to provide notice of additional witnesses [29] . Failure to comply in these cases, allows for adverse inference [30] . These duties are imposed with a view of allowing prosecutors to prepare a case against the defence [31] . This further establishes the power of the state against the defence, by means of limiting their right to silence. Given the difference in power between the two, coupled with the presumption of innocence, this furthers the case for the right to silence for the defence [32] .

In light of the argument made above, it is possible to argue that section 34 of CJPO case law is problematic, because lack of disclosure undermines the inference from silence. The reason being that inference usually depends on the assumption that the innocent will reveal their defences to the police at interview for the sake of self-preservation. As shown above, it is believed that the innocent has nothing to hide. However, it is equally true, if an innocent suspect thinks that the evidence against him is weak, he may think that he will soon be released anyway, even if he does not put forward a defence [33] . In Beckles [34] , if the defence had admitted to being present at the scene of crime he would have potentially incriminated himself in relation to false imprisonment. The argument in favour of the Right to Silence in such cases is that there is a risk of bolstering a prosecution, which otherwise could not have been able to move forward [35] . While the caution does warn of the risk of an adverse inference from the Silence [36] , there is still a chance that defence might believe that with a lack of evidence, the prosecution might never go through. Again, it is important to remember that there always needs to be a balance between the two models of CJS, and thus between the powers of the prosecution who has the enormous power of the state behind them, against the powers of the defence, who in most cases, must rely on their own abilities or that of the legal advisors that they have access to.

In line with what has been argued above, it seems probable that generally defence counsel will usually ask their clients to remain silent until the police disclose information regarding the case. It was found through research that this was indeed the case and was done out of a fear of self-incrimination [37] . Legal counsel in these cases often assert that without the police having disclosed some information about the case, it was unreasonable for their clients to answer questions [38] . Because the law demands that adverse inference can only be drawn where the defence could reasonably have been expected to answer [39] , this proves to be an effective strategy in ensuring that the police at least disclose some information [40] . Even if this is at the discretion of the police [41] .

In Argent [42] , the solicitor had advised silence as a result of the lack of cooperation from the police. The Court of Appeals in this case, held that legal advice in this case was not relevant due to client confidentiality. It was held that the true test per CJPO-1994 was whether it was reasonable for the suspect to have disclosed the fact that he later relied on in trial. Additionally, it was held that police failure to disclose specific details was dependent on what might have been necessary to deem the suspect’s behaviour as unreasonable. This view was well accepted [43] .

This makes it difficult for lawyers to advice clients and for clients to follow whatever advice is given to them regarding the matter [44] . To convince the courts of their reasonableness in relying on their lawyers, it then becomes a necessity for suspects to disclose what they had discussed with their counsel [45] , which might be well against their interests [46] . The Court of Appeals has continued to affirm such positions and allowed adverse inference in cases where the accused have remained silent on the basis of the legal advice they had received, unless the jury was lead to believe that the defendant had a genuine reason to rely on the advice of their counsel entirely [47] . It is important to recognise that this contradicts the position of the European Court of Human Rights in the decision in Condron [48] . This shows that the English CJS is predisposed against the Right to Silence, and that the exercise of this right may prove to be a bad strategy on part of the defence [49] . The view of the court was that the mere advice of counsel was not sufficient reason for an individual to assume that this was reasonable [50] . The lack of clarity on the stance of the courts and the innate idea that judges and juries might take different views of the Right to Silence being exercised [51] . It is thus evident that lawyers and their clients will often have a difficult time assessing which route to take, and even where advice to remain silent is given, lawyers are now more prone to give advice to their clients regarding the reasonableness of relying on the advice itself [52] .

This stance against the Right of Silence suggests a number of problems. First, it weakens the abilities of lawyers and clients to function within their dynamics by infringing on the ability of honest and genuine legal advice being given and received [53] . Second, it undermines public interest in protecting the dignity and privacy of individual suspects who are paired against the awesome power of the state and need protection. Finally, it damages the presumption of innocence, by making it imperative for the defence to speak up in order to validate their position. It is evident that the Courts support the rationale of CJPO-1994 of ‘flushing out innocence at an early stage or supporting other evidence of guilt at a later stage’ [54] . The Court’s stance in this case is heavily geared towards the crime control model [55] .

In line with what we have seen above, it is evident that Courts have now resorted to allowing adverse inferences from silence to fill the gaps in the prosecution case [56] . Nevertheless, it is argued that this relies on the Court’s interpretation of CJPO-1994, however, it seems to always tilt in favour of prosecution [57] .

Silence is now more frequently used in serious cases [1] . In addition to this, research suggests that in only a small number of non-prosecuted cases and acquittals, the Right of Silence is exercised, and that the outcome is not linked to the right either [2] . The fact that so few successful defences are because of the Right to Silence being exercised, it is safe to presume that the existence of such aright would not exponentially change conviction rates. Research shows that while the number of people who answer questions during interviews has risen [3] , the number of people subsequently charged has slightly fallen [4] .

The Phillips Commission [5] was in favour of the Right of Silence [6] . However, the Courts took the opposite stance after noticing a fall in conviction rates [7] . The Runciman Commission [8] mostly agreed with the Phillips Commission in stating that adverse inference from silence puts a strong mental burden on certain suspects and thus making them more likely to make incriminating statements against themselves and potentially sending innocent people to jail while leaving hardened criminals unaffected and thus not changing their conviction rates [9] . This does nothing in favour of the innocent and only makes the CJS more difficult to manoeuvre around. Regardless of these recommendations and obvious problems, the CJPO-1994 was till enacted.

The decline of the Right of Silence offends against the freedom principle [10] . With very little to gain at the cost of significant threats to the defendants and defence counsel at trials, the measures of such provisions of law seem oddly disproportionate to the results that it achieves [11] . Concerns regarding the provisions have been raised by multiple commentators [12] and even the Court of Appeals [13] , despite their inclination toward sticking to the letter of law when it comes to section 34 [14] . The Court rightly points out that the erosion of the Right of Silence by means of CJPO-1994 has led to the promotion of the adverse inference to a gravely damaging extent [15] . It gravely entrenches on the principles of the CJS and its repeal has been argued by academicians [16] .

As argued above and as seen through the analysis of case law, the protection of the presumption of innocence is imperative. The decline of the Right to Silence is an obvious threat to that, as it not only pits weak defendants against the might of the state, it also limits their ability to gain meaningful counsel on the matter. Furthermore, with no real benefit being seen from this decline, it almost seems unnecessary. Protection of fair trials is what should be prioritised at all times in a CJS and the Right to Silence is imperative to that. The use of Silence as a form of evidence, is deeply disturbing [17] .

Bibliography

Condron Vs UK (2001) 31 EHRR 1
Funke Vs France (1993) 16 EHRR 297
Higgins (2003) EWCA 2943
Hoare and Pierce (2004) EWCA Crim 784
Murray Vs UK [1996] 22 EHRR 29
R Vs Alladice (1988) 87 Cr App Rep 380
R Vs Argent (1997) 2 Cr App Rep 27
R Vs Beckles (2004) EWCA Crim 2766
R Vs Bresa (2005) EWCA Crim 1414
R Vs Cowan (1996) QB 373
R Vs Howell (2003) Crim LR 405
R Vs Knight (2004) Cr App R 9
R Vs Lisa Loizu (2006) EWCA Crim 1719
R Vs Roble (1997) Crim Lr 499
R Vs W [2006] EWCA (Crim) 1292
R Vs Webber [2004] UKHL 1
R Vs. Beckles [2005] 1 W.L.R. 2829
Saunders Vs UK (1996) 23 EHRR 313
T Vs DPP (2007) EWHC 1793 (Admin)
Taylor [1971] 2 WLR 1047
Criminal Justice Act 2003
Criminal Justice and Public Order Act 1994
Police and Criminal Evidence Act 1984
Police and Criminal Evidence Act 1984, Code C
European Convention of Human Rights
Andrew L-T Choo, Evidence (4th Edition) (Oxford)
Blackstone’s Guide to the Criminal Justice Act 2003 (Oxford University Press) (2004)
I. H. DENNIS, THE LAW OF EVIDENCE (3rd Edition) (2007)
Sanders A, Young R, Burton M, Criminal Justice (4th Edition) (Oxford)
Cape E, Defending Suspects at Police Stations, 5th Edition (London: LAG 2006c)
Cooper S, ‘Legal Advice and Pre-trial Silence – Unreasonable Developments’ (2006) 10 IJ E&P 60
D Birch, ‘Suffering in Silence: A Cost-benefit Analysis of Section 34 of the Criminal Justice and Public Order Act 1994’ (1999) Criminal Law Review 769
Easton S, The Case for the Right to Silence (Aldershot: Ashgate, 1998)
Leng R, The Right to Silence in the Police Interrogation (RCCJ Research Study No. 10) (London: HMSO, 1993)
McConville M and Hodgson J, Custodial Legal Advice and the Rights to Silence (Royal Commission on Criminal Justice Research Study No. 16) (London: HMSO, 1993)
Moston S and Williamson T, ‘The Extent of Silence in Police Interviews’ In Geer S and Morgan R (eds), The Right to Silence Debate (Bristol: University of Bristol, 1990)
Pattenden R, ‘Inferences from Silence’ (1995) Crim LR 602
Pattenden R, ‘Silence, Lord Taylor’s Legacy’ (1998) 2 IJ E&P 141
Quinn K and Jackson J, ‘Of rights and Roles: Police Interviews with Young Suspects in Northern Ireland’ (2007) 47 BJ Crim 234 Cape E, ‘Sidelining Defence Lawyers: Police Station Advice After Condron’ (1997) 1 IJ E&P 386
Quoted by, Geer S, ‘The Right to Silence: A Review of the Current Debate’ (1990) 53 MLR 719
Redmayne M, English Warnings, Cardozo Law Review, [vol 30:3]
Royal Commission on Criminal Justice (RCCJ), Report (Cm 2263) (London: HMSO, 1993)
Sanders A and Bridges L, Access to Legal Advice and Police Malpractice (1990) Crim LR 494
T Bucke, R Street and D Brown, The Right of Silence: The Impact of the Criminal Justice and Public Order Act 1994 (Home Office Research Study 199) (2000)
T Bucke, R Street and D Brown, The Right of Silence: The Impact of the Criminal Justice and Public Order Act 1994 (Home Office Research Study 199) (2000)
The Royal Commission on Criminal Procedure Report (1981)

[1] Moston S and Williamson T, ‘The Extent of Silence in Police Interviews’ In Geer S and Morgan R (eds), The Right to Silence Debate (Bristol: University of Bristol, 1990), p 38.

[2] Leng R, The Right to Silence in the Police Interrogation (RCCJ Research Study No. 10) (London: HMSO, 1993)

[3] T Bucke, R Street and D Brown, The Right of Silence: The Impact of the Criminal Justice and Public Order Act 1994 (Home Office Research Study 199) (2000), 31

[4] T Bucke, R Street and D Brown, The Right of Silence: The Impact of the Criminal Justice and Public Order Act 1994 (Home Office Research Study 199) (2000), 40-41

[5] The Royal Commission on Criminal Procedure (Phillips Commission)

[6] The Royal Commission on Criminal Procedure Report (1981), p 80-91

[7] R Vs Alladice (1988) 87 Cr App Rep 380

[8] Royal Commission on Criminal Justice (Runciman Commission)

[9] Royal Commission on Criminal Justice (RCCJ), Report (Cm 2263) (London: HMSO, 1993), p 55

[10] Sanders A, Young R, Burton M, Criminal Justice (4 th Edition) (Oxford) p 272

[11] Andrew L-T Choo, Evidence (4 th Edition) (Oxford), p 144

[12] D Birch, ‘Suffering in Silence: A Cost-benefit Analysis of Section 34 of the Criminal Justice and Public Order Act 1994’ (1999) Criminal Law Review 769

[13] R Vs Bresa (2005) EWCA Crim 1414

[14] Criminal Justice and Public Order Act 1994, s.34

[15] R Vs Bresa (2005) EWCA Crim 1414 at [4]

[16] I. H. DENNIS, THE LAW OF EVIDENCE (3 rd Edition) (2007), p 206

[17] Redmayne M, English Warnings, Cardozo Law Review, [vol 30:3]

[1] Henceforth known as PACE-1984

[2] Police and Criminal Evidence Act 1984, Code of Practice C, para 10.1

[3] Murray v UK [1996] 22 EHRR 29

[4] European Convention of Human Rights, art 6

[5] Condron Vs UK (2001) 31 EHRR 1

[6] Easton S, The Case for the Right to Silence (Aldershot: Ashgate, 1998) ch 1.

[7] Sanders A, Young R, Burton M, Criminal Justice (4 th Edition) (Oxford) p 260

[8] Quoted by, Geer S, ‘The Right to Silence: A Review of the Current Debate’ (1990) 53 MLR 719

[9] Henceforth known as CJPO-1994

[10] Criminal Justice and Public Order Act 1994, s.34

[11] Criminal Justice and Public Order Act 1994, s.35

[12] Criminal Justice and Public Order Act 1994, s.36

[13] Criminal Justice and Public Order Act 1994, s.37

[14] R Vs Cowan (1996) QB 373, per Lord Chief Justice

[15] Criminal Justice and Public Order Act 1994, s.38

[16] Condron Vs UK (2001) 31 EHRR 1

[17] Sanders A, Young R, Burton M, Criminal Justice (4 th Edition) (Oxford) p 263

[18] R Vs Webber [2004] UKHL 1

[19] Sanders A and Bridges L, Access to Legal Advice and Police Malpractice (1990) Crim LR 494

[20] Andrew L-T Choo, Evidence (4 th Edition) (Oxford), p 145-152

[21] Funke Vs France (1993) 16 EHRR 297

[22] Saunders Vs UK (1996) 23 EHRR 313

[23] European Convention of Human Rights, art 6

[24] Sanders A, Young R, Burton M, Criminal Justice (4 th Edition) (Oxford) p 265

[25] R v. W [2006] EWCA (Crim) 1292, [8]

[26] Criminal Procedure and Investigations Act, s.5

[27] Taylor [1971] 2 WLR 1047; Taylor et al, Blackstone’s Guide to the Criminal Justice Act 2003 (Oxford University Press) (2004), p 40

[28] Criminal Justice Act 2003, s.33

[29] Criminal Justice Act 2003, s.34

[30] Criminal Justice Act 2003, s.39

[31] Sanders A, Young R, Burton M, Criminal Justice (4 th Edition) (Oxford) p 266

[32] Higgins (2003) EWCA 2943

[33] Redmayne M, English Warnings, Cardozo Law Review, [vol 30:3]

[34] R v. Beckles [2005] 1 W.L.R. 2829

[35] ED CAPE, DEFENDING SUSPECTS AT POLICE STATIONS 201-02, 217-18 (2006)

[36] Police and Criminal Evidence Act 1984, Code of Practice C, para 10.

[37] McConville M and Hodgson J, Custodial Legal Advice and the Rights to Silence (Royal Commission on Criminal Justice Research Study No. 16) (London: HMSO, 1993)

[38] T Bucke, R Street and D Brown, The Right of Silence: The Impact of the Criminal Justice and Public Order Act 1994 (Home Office Research Study 199) (2000), 23

[39] Criminal Justice and Public Order Act 1994, s.34

[40] Sanders A, Young R, Burton M, Criminal Justice (4 th Edition) (Oxford) p 268

[41] Quinn K and Jackson J, ‘Of rights and Roles: Police Interviews with Young Suspects in Northern Ireland’ (2007) 47 BJ Crim 234

[42] R Vs Argent (1997) 2 Cr App Rep 27

[43] R Vs Roble (1997) Crim Lr 499

[44] Cape E, ‘Sidelining Defence Lawyers: Police Station Advice After Condron’ (1997) 1 IJ E&P 386, p 398

[45] T Vs DPP (2007) EWHC 1793 (Admin)

[46] R Vs Lisa Loizu (2006) EWCA Crim 1719

[47] R Vs Beckles (2004) EWCA Crim 2766

[48] Condron Vs UK (2001) 31 EHRR 1

[49] R Vs Howell (2003) Crim LR 405

[50] R Vs Knight (2004) Cr App R 9

[51] Sanders A, Young R, Burton M, Criminal Justice (4 th Edition) (Oxford) p 270

[52] Cape E, Defending Suspects at Police Stations, 5 th Edition (London: LAG 2006c)

[53] Cooper S, ‘Legal Advice and Pre-trial Silence – Unreasonable Developments’ (2006) 10 IJ E&P 60

[54] Hoare and Pierce (2004) EWCA Crim 784

[55] Sanders A, Young R, Burton M, Criminal Justice (4 th Edition) (Oxford) p 270

[56] Pattenden R, ‘Inferences from Silence’ (1995) Crim LR 602, p 607

[57] Pattenden R, ‘Silence, Lord Taylor’s Legacy’ (1998) 2 IJ E&P 141, p 164

[58] Moston S and Williamson T, ‘The Extent of Silence in Police Interviews’ In Geer S and Morgan R (eds), The Right to Silence Debate (Bristol: University of Bristol, 1990), p 38.

[59] Leng R, The Right to Silence in the Police Interrogation (RCCJ Research Study No. 10) (London: HMSO, 1993)

[60] T Bucke, R Street and D Brown, The Right of Silence: The Impact of the Criminal Justice and Public Order Act 1994 (Home Office Research Study 199) (2000), 31

[61] T Bucke, R Street and D Brown, The Right of Silence: The Impact of the Criminal Justice and Public Order Act 1994 (Home Office Research Study 199) (2000), 40-41

[62] The Royal Commission on Criminal Procedure (Phillips Commission)

ABOUT THE AUTHOR

Ahmed Shafquat Hassan is currently working at the Centre for Peace and Justice as a Research Assistant. His primary focus is on constitutional law and human rights protection. He was called to the bar of England and Wales in 2018 by the Honourable Society of the Inner Temple and has spent a year as a pupil barrister, working with Probir Neogi and Associates. He is an accredited Civil and Commercial Mediator with ADR-ODR International.

‘You do not have to say anything …’: Instructing the jury on the defendant’s right to silence in the English criminal justice system

Janet Cotterill

The right to silence is both a fundamental and a controversial element of the legal process. Suspects and defendants are reminded repeatedly of this entitlement, from the moment of arrest, where the police caution explains that ‘you do not have to say anything …’, to the right of defendants in criminal trials to decline to testify in their own defence. However, the decision to remain silent is not a risk-free strategy for the suspect/defendant in the English legal system. Unlike in the US, where criminal juries are instructed that they may not draw any inferences from such a decision, recent changes in the UK mean that English juries are now instructed that they may draw ‘appropriate inferences’ from the defendant’s failure to speak. This paper draws on a corpus of oral jury instructions taken from English criminal trials where the defendant chose to invoke the right to silence at interview and/or during the subsequent trial. It analyses the communicative strategies employed by trial judges in explaining this aspect of the law to juries in their final jury instructions, and includes a discussion of some of the implications of this erosion of the right to silence for both suspects and defendants.

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Development of the Right to Silence in International Human Rights Law

First Online: 02 September 2016

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Fenella M. W. Billing 2

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International frameworks for human rights protection provide an important background to the transnational process of evidence gathering in cross-border cases. Their main functions are setting and monitoring minimum standards of individual protection and providing an avenue of complaint against the state when these standards are not being met. Through these functions, international attention is drawn to the legal development of human rights. There is an argument at least in Denmark that the principles developed under a framework such as the one provided for in the ECHR, due to the nature of the ECtHR’s dynamic interpretation, may be applicable in national law through incorporation. In addition, the protective frameworks may create certain assumptions between cooperating states about, for example, the types of procedures that operate to the benefit of suspects, victims or other individuals caught up in the process. Further, depending on the influence of theses frameworks, they may encourage uniformity of minimum procedural standards to such an extent that the overall aim of gathering admissible evidence in transnational cases is optimised. This chapter lays out the legal background of the right to silence in relation to two significant international human rights frameworks, the ICCPR and the ECHR.

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Cape et al. ( 2010 ), p. 7; see further articles 14–16 of the International Covenant on Civil and Political Rights 1966 (ICCPR); art. 6 of the European Convention on Human Rights and Fundamental Freedoms 1950 (ECHR); art. 3 and 8–10 of the American Convention of Human Rights 1969 (ACHR); articles 3 and 7, African Charter on Human and People’s Rights 1981 (ACHPR); articles 12–13 and 15–19 Arab Charter on Human Rights 1994 (revised 2004); and articles 6–7 of the Commonwealth of Independent States Convention on Human Rights and Fundamental Freedoms (1995).

As examples of the way in which the right to a fair trial is established in international criminal law, see the following articles of the Rome Statute of the International Criminal Court: art. 55(1)(a) in relation to the right to silence and the right against self-incrimination, as well as the right to access a legal advisor prior to and during interrogation; art. 55(2)(b) on the effect of the investigative right to silence, which cannot be used against an accused person at trial; art. 55(2)(c) and 55(2)(d) about the right to legal representation prior to and during interrogation; and articles 66 and 67 in relation to the presumption of innocence and a broad range of other fair trial guarantees.

International Covenant on Civil and Political Rights, opened for signature in New York on 19 December 1966 and entered into force 23 March 1976 (with the exception of Article 41), UNTS 999/171.

Convention for the Protection of Human Rights and Fundamental Freedoms 1950 87 UNTS 103; ETS 5.

Within the EU the Charter of Fundamental Rights and Freedoms is also of continually growing significance. The ICCPR and the ECHR have also influenced the development of defence rights in international criminal cases.

Human Rights Committee, General Comment 30; Art. 6(2) ECHR.

CCPR, General Comment No. 29: States of emergency (Article 4), CCPR/C/21/Rev.1/Add.11, [11].

Moeckli et al. ( 2010 ), p. 324.

Human Rights Committee, General Comment No 32, Art. 14: Right to equality before courts and tribunals and to a fair trial, UN Doc. CCPR/C/GC/32 (2007), [13].

This requires the defence has the right to call, examine and cross-examine witnesses. See further Article 14(3)(e) ICCPR and Human Rights Committee, General Comment No 32, Art. 14: Right to equality before courts and tribunals and to a fair trial, UN Doc. CCPR/C/GC/32 (2007), [39]. There are other issues relevant to an effective defence, such as the right to be present; right of appeal; compensation for miscarriage of justice; ne bis in idem ; prohibition on retrospective criminal legislation: see further Human Rights Committee; General Comment 32, [47]; and see Kälin and Künzli ( 2009 ), pp. 456–460.

(ECtHR) John Murray v The United Kingdom , Application no. 18731/91, 8 February 1996, [45].

See also Jackson and Summers ( 2012 ), p. 276, referring to protective and participatory defence rights and that the right to silence may be classified as both.

Moeckli et al. ( 2010 ), p. 35.

American Civil Liberties Union ( 2012 ); on the importance of the UDHR as a moral constitution for the human rights movement, see Steiner et al ( 2007 ), p. 136.

De Schutter ( 2010 ), pp. 16 and 50; Steiner et al. ( 2007 ), p. 137.

See the International Covenant on Civil and Political Rights, opened for signature in New York on 19 December 1966 and entered into force 23 March 1976 (with the exception of Article 41), UNTS 999/171; and the International Covenant on Economic, Social and Cultural Rights, opened for signature in New York on 19 December 1966 and entered into force 3 January 1976, UNTS 993/3.

The ICCPR and the ECHR could be described as law-making treaties, which not only create reciprocal undertakings (as do ‘contractual treaties’) but also provide for rights and liabilities: Emmerson et al. ( 2012 ), p. 83.

Human Rights Committee, General Comment No 32, art. 14: Right to equality before courts and tribunals and to a fair trial, UN Doc. HR COMMITTEE/C/GC/32 (2007), [13].

Article 14(3)(g) ICCPR. Article 14(4), (5), (6) and (7) also provide for special rights for juveniles; a right to appeal conviction and sentence; compensation for wrongful imprisonment and the rule against double jeopardy. Article 15 protects against retroactive effect of criminal liability or sentencing practices that are detrimental to a person charged with a criminal offence.

There are 74 signatories and 168 state parties to the ICCPR and 71 signatories and 164 parties to the ICESCR (the rates are even lower for the optional protocol to each treaty): United Nations ( 2015 ).

Crawford ( 2012 ), pp. 55–57.

See Sect. 3.2.2 below.

See the BAILII online database for case examples referring to either the ICCPR or the HR Committee: British and Irish Legal Information Institute ( 2015 ).

Optional Protocol to the International Covenant on Civil and Political Rights, opened for signature on 19 December 1966 and entered into force on 23 March 1976 UNTC 999/171.

There have been communications initiated against Denmark and Australia: see, for example, Office of the High Commissioner ( 2014 ). The question whether the ICCPR individual complaints procedure is effective in encouraging reform in the respondent states has not been assessed here.

This reporting procedure is also backed by the Universal Periodic Review process conducted by the HRC under the UN Charter.

Convention on the Rights of the Child, opened for signature in New York on 20 November 1989, entered into force on 2 September 1990, UNTC 1577/3.

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature in New York on 10 December 1984, entered into force on 26 June 1987, UNTC 1465/85.

Basic Principles on the Role of Lawyers agreed at the 8th UN Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, A/CONF.144/28/Rev.1, 118 (1990).

HR Committee, General Comment No. 29: States of Emergency (article 4), 31-08-2001, CCPR/C/21/Rev.1/Add.11.

Jackson and Summers ( 2012 ) have taken a similar approach in considering the way in which evidentiary rules and principles are dealt with under international law, focusing primarily on the HR Committee’s general comments and the jurisprudence of the ECtHR, as the applicable minimum standards under the ICCPR and ECHR frameworks, respectively.

The HR Committee constitutes representatives of 18 signatory states from different regions. About the work of treaty bodies as a source of law, see further Moeckli et al. ( 2010 ), p. 119.

See for example, the right to be informed of a charge in a language which the accused person understands in art. 14(3)(a) ICCPR; see also art. 9 ICCPR with respect to the right to information in order for a detainee to challenge the lawfulness of his detention.

See art. 14(3)(b) ICCPR where the use of the word ‘facilities’ would include disclosure of documents. An accused should also be tried without undue delay, where a defendant in pre-trial detention may be innocent, or where delay may weaken the defendant’s chances of challenging the prosecution evidence: see, for example, art. 14(3)(c) ICCPR. See further Kälin and Künzli ( 2009 ), pp. 455–466.

Human Rights Committee, General Comment No 32, Article 14: Right to equality before courts and tribunals and to a fair trial, UN Doc. CCPR/C/GC/32 (2007), [33]; see also Moeckli et al. ( 2010 ), p. 325.

Human Rights Committee, General Comment No 34, Article 19: Freedoms of opinion and expression, under “Rights of Access to Information”.

Human Rights Committee, General Comment No 32, Art. 14: Right to equality before courts and tribunals and to a fair trial, UN Doc. CCPR/C/GC/32 (2007), [31]. The HR Committee goes on to note that notice for reasons of an arrest is separately protected in art. 9(2) of the ICCPR.

Human Rights Committee, General Comment No 32, Art. 14: Right to equality before courts and tribunals and to a fair trial, UN Doc. CCPR/C/GC/32 (2007), [31].

For a clarification of this point, see Table 1.1 in Chap. 1 , Appendix section.

Human Rights Committee, General Comment No 32, Art. 14: Right to equality before courts and tribunals and to a fair trial, UN Doc. CCPR/C/GC/32 (2007), [41].

Human Rights Committee, General Comment No 32, Art. 14: Right to equality before courts and tribunals and to a fair trial, UN Doc. CCPR/C/GC/32 (2007), [41]; see further Jackson and Summers ( 2012 ), pp. 247 and 250.

See further Kälin and Künzli ( 2009 ), p. 457.

See Kälin and Künzli ( 2009 ), p. 456. The circumstances where a lawyer must be assigned may include, for example, if the defendant is charged with a serious offence and is unable to represent himself, or where the defendant should be prohibited from cross-examining and thereby intimidating witnesses: HR Committee, General Comment No. 32, [37].

Human Rights Committee, General Comment No 32, Art. 14: Right to equality before courts and tribunals and to a fair trial, UN Doc. CCPR/C/GC/32 (2007), [32]. Under art. 14(3)(d) of the ICCPR, in connection with being tried, a person’s right to legal assistance includes the right to have free legal assistance assigned to him in the interests of justice.

Jackson and Summers ( 2012 ), p. 277, referring to Basic Principles on the Role of Lawyers agreed at the 8th UN Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, A/CONF.144/28/Rev.1 (1990).

UN Committee Against Torture, General Comment no. 2, 24 January 2008, CAT/C/GC/2, [13].

United Nations Economic and Social Council ( 2004 ), [67].

United Nations Economic and Social Council ( 2004 ), [68].

The European Commission on Human Rights was abolished in 1998 under Protocol 11.

Wu ( 2011 ), p. 91.

See further Chaps. 3 and 4 about the implementation of the ECHR and the value of the decisions of the ECtHR in the national settings of Denmark and England and Wales.

European Court of Human Rights, Public Relations Unit ( 2012 ), p. 5.

Wu ( 2011 ), p. 85.

See for example (ECtHR) Pishchalnikov v. Russia , Application no. 7025/04, 24 September 2009, [66].

Cape et al. ( 2010 ), p. 53.

See further Harris et al. ( 2014 ), p. 409.

See for example (ECtHR) Pishchalnikov v. Russia , Application no. 7025/04, 24 September 2009, [64] citing Poitrimol v France , 23 November 1993, [29].

(ECtHR) Pishchalnikov v. Russia , Application no. 7025/04, 24 September 2009, [64].

See further Art. 6, European Convention for the Protection of Human Rights and Fundamental Freedoms (1950); Article 8, American Convention on Human Rights (1969); Articles 3 and 7, African Charter on Human and People’s Rights (1981); Articles 6 and 7, Commonwealth Convention on Human Rights and Fundamental Freedoms (1995) from the Commonwealth of Independent States; Articles 7, 9 and 18, Arab Charter on Human Rights (1994) from the League of Arab States.

See the preamble of the ECHR; see further Harris et al. ( 2014 ), p. 7.

(ECtHR GC) Gäfgen v Germany , Application no. 22978/05, 1 June 2010.

Harris et al. ( 2014 ), p. 8.

See Harris et al. ( 2014 ), p. 9.

see further Harris et al. ( 2014 ), pp. 8–9.

Harris et al. ( 2014 ), p. 9.

See further, art. 32 Vienna Convention on the Law of Treaties.

Harris et al. ( 2014 ), pp. 19–20.

[ECtHR GC] Christine Goodwin v The United Kingdom , Application no. 17488/90, 11 July 2002, [85]. Alternatively, where a clear European consensus is lacking, the ECtHR sometimes interprets a provision in such a way that allows states a wide margin of appreciation. About the margin of appreciation, see Harris et al. ( 2014 ), pp. 14–17.

(ECtHR) Allan v. The United Kingdom , Application No. 48539/99, 5 November 2002.

Harris et al. ( 2014 ), p. 11.

See, for example, Van Hoecke and Warrington ( 1998 ), pp. 501 and 527.

Elo Rytter ( 2013 ), p. 49.

See art. 34 and 35(1), ECHR.

No action can be taken in the national system for a failure to pay the awarded sum.

Harris et al. ( 2014 ), pp. 198–199.

Harris et al. ( 2014 ), p. 199.

Resolution 73(5) of the Committee of Ministers of the Council of Europe.

Daniel et al. ( 2011 ), pp. 141–144. About the future accession of the EU to the ECHR, see Barnard and Peers ( 2014 ), pp. 249–252; Harris et al ( 2014 ), pp. 31–33; and Daniel et al. ( 2011 ), pp. 156–158; and see [CJEU] Opinion on the draft agreement on the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms 2/13, 18 December 2014.

Daniel et al. ( 2011 ), p. 158.

Secondary legislation is adopted by EU institutions on the basis of the EU founding treaties. Regulations are an example of secondary legislation that have direct effect. See further, Daniel et al ( 2011 ), pp. 158–161.

See further Daniel et al. ( 2011 ), pp. 269–270.

On direct effect of decisions, see further Daniel et al. ( 2011 ), pp. 165 and 273; Framework decisions, such as the European Arrest Warrant Framework Decision, enacted prior to the entry into force of the Lisbon Treaty did not have direct effect: Chalmers et al. ( 2014 ), p. 300.

Van Hoecke and Warrington ( 1998 ), p. 500.

Treaty on European Union 1992 (TEU), entered into force 1 November 1993.

Treaty on the Functioning of the EU 1997 (TFEU), entered into force on 1 December 2009.

Tampere European Council Presidency Conclusions, 15 and 16 December 1999.

See further Cape et al. ( 2010 ), pp. 8–10.

Article 52(3), Charter of Fundamental Rights of the European Union, OJ 2007 L303/01.

See, for example, (ECJ GC) Case C-105/03 Pupino [2005] ECR I-5285, 16 June 2005, [58–60] in relation to the operation of a framework decision on victims’ rights in national criminal proceedings.

Though note the optional positions of Ireland and the United Kingdom, and the position of Denmark.

For a detailed analysis of mutual trust in international cooperation within the EU see Chap. 7 .

See further Cape et al. ( 2010 ), p. 11.

Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings, OJEU L 280/1.

Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings, OJEU L 142/1.

European Commission ( 2011 ).

Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty, OJEU L 294/1, 6 November 2013; after 27 November 2016, the directive may arguably have direct effect, if it is regarded to be unconditional and sufficiently clear and precise: see the (CJEU) Case C-41/74 Van Duyn v Home Office , 4 December 1974.

Elo Rytter ( 2013 ), p. 31.

Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters, OJEU L 130/1, 1 May 2014: The UK is taking part in the directive, but Denmark and Ireland are not taking part and will not be bound by its provisions.

Cape et al. ( 2010 ), p. 13.

Note the procedures for urgent hearings in relation to detainees: Cape et al. ( 2010 ), p. 13; see, for example, (CJEU GC) Case C-396/11 Radu [2013] and (CJEU GC) and Case C-399/11 Stefano Melloni v Ministerio Fiscal [2013].

See further Cape et al. ( 2010 ), p. 14.

Elo Rytter ( 2013 ), p. 32.

[CJEU] Opinion on the draft agreement on the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms 2/13, 18 December 2014.

As examples of constitutional rights within the EU, the Portuguese and the Spanish constitutions protect the presumption of innocence. The Spanish constitution also establishes the right not to be compelled to confess. The Italian legal system recognizes that a citizen is not considered guilty until final judgment is passed : D’Amico ( 2010 ), pp. 300–301.

Article 6, Treaty on European Union (TEU). See the Consolidated Version of the Treaty on European Union (TEU), OJ C 115/13 May 2008.

Section 3(1) of the European Communities Act 1972.

The European Commission on Human Rights expressed the opinion that a person is charged with a criminal offence for the purposes of the ECHR when he or she is substantially affected by the proceedings against them: Deweer v. Belgium, Application no. 6903/75, 27 February 1980, [46].

See also art. 6(3)(e) about the right to an interpreter and art. 5(2) ECHR with respect to the right to information in order for a detainee to challenge the lawfulness of his detention.

See further Cape et al. ( 2010 ), pp. 32–36; Wu ( 2011 ), p. 104. In most European jurisdictions, the authorities do not disclose all the material relating to an alleged offence in the investigation stage. Most states do allow a right to full disclosure of the material evidence to the accused or his lawyer prior to trial. Recently, the ECtHR has been resolving complaints relating to non-disclosure under the right to an adversarial trial, in art. 6(3)(d): Harris et al. ( 2014 ), pp. 416–417.

(ECtHR) Salduz v Turkey , Application no. 36391/02, 27 November 2008, [54]; Pishchalnikov v Russia, Application no. 7025/04, 24 September 2009, [69].

(ECtHR) Pishchalnikov v Russia, Application no. 7025/04, 24 September 2009, [65]; see further (ECtHR) Imbrioscia v Switzerland , Application no. 13972/88, 24 November 1993, [36] and (GC) Öcalan v Turkey , Application no. 46221/99, 12 May 2005, [131].

(ECtHR) Pishchalnikov v Russia, Application no. 7025/04, 24 September 2009, [67]; see also (ECtHR) Imbrioscia v Switzerland , Application no. 13972/88, 24 November 1993, [38].

Van Dijk et al. ( 2006 ), p. 540.

(ECtHR) Deweer v Belgium , Application no. 6903/75, 27 February 1980, [44]; Shabelnik v Ukraine , Application no. 16404/03, 19 February 2009, [57]; see also Van Dijk et al. ( 2006 ), p. 540.

(ECtHR) Deweer v Belgium , Application no. 6903/75, 27 February 1980, [44, 46].

See further Harris et al. ( 2014 ), pp. 376–377.

It may not be sufficient that this is done by a letter of rights: see (ECtHR) Panovits v Cyprus , Application no. 4268/04, 11 December 2008, [67–68]; see further, Cape et al. ( 2010 ), p. 34.

Cape et al. ( 2010 ), p. 34. The right to be ‘cautioned’ first appeared in the US Supreme Court Miranda case, in 1966: Trechsel and Summers ( 2006 ), p. 352.

(ECtHR) Aleksandr Zaichenko v. Russia , Application no. 39660/02, 18 February 2010, [52 and 55]. The Court did not actually specify a test to determine the extent of suspicion required when a person is to be regarded as charged.

(ECtHR) Aleksandr Zaichenko v. Russia , Application no. 39660/02, 18 February 2010, [55–60]. It should be noted that a violation of the right against self-incrimination may be found even where the incriminating statement is not used at a trial to found a conviction: (ECtHR) Marttinen v Finland , Application no. 19235/03, 21 April 2009, [64].

(ECtHR) Panovits v. Cyprus , Application no. 4268/04, 11 December 2008, [67–68].

(ECtHR) Panovits v. Cyprus , Application no. 4268/04, 11 December 2008, [67].

(ECtHR), Panovits v. Cyprus , Application no. 4268/04, [74].

See Spronken ( 2010 ).

(ECtHR) Brusco v France , Application no. 1466/07, 14 October 2010, [47–50].

This is the approach of the ECtHR, which has followed the International Criminal Tribunal for the Former Yugoslavia: Cape et al. ( 2010 ), pp. 36–38.

(ECtHR) Salduz v. Turkey , Application no. 36391/02, 27 November 2008, [54]; Pishchalnikov v Russia , Application no. 7025/04, 24 September 2009, [69].

(ECtHR) Panovits v Cyprus , Application no. 4268/04, 11 December 2008; see also (ECtHR) Adamkiewicz v. Poland , Application no. 54729/00, 2 March 2010 in relation to the need for a minor to have broad access to defence lawyer prior to pre-trial questioning.

(ECtHR) Panovits v Cyprus , Application no. 4268/04, 11 December 2008, [76].

(ECtHR) Salduz v. Turkey , Application no. 36391/02, 27 November 2008, [54].

(ECtHR) Salduz v. Turkey , Application no. 36391/02, 27 November 2008, [50], [58] and [62]; see also the Council of Europe Prison Rules 2006.

(ECtHR) Salduz v. Turkey , Application no. 36391/02, 27 November 2008, [54–55].

(ECtHR) Salduz v. Turkey , Application no. 36391/02, 27 November 2008, [60–61].

See further Wu ( 2011 ), p. 99.

(ECtHR) Salduz v. Turkey , Application no. 36391/02, 27 November 2008, [52].

(ECtHR) Salduz v. Turkey , Application no. 36391/02, 27 November 2008, [58].

(ECtHR) Salduz v. Turkey , Application no. 36391/02, 27 November 2008, [53]; Pishchalnikov v Russia , Application no. 7025/04, 24 September 2009, [68].

(ECtHR) Aleksandr Zaichenko v. Russia , Application no. 39660/02, 18 February 2010, [47].

(ECtHR) Aleksandr Zaichenko v. Russia , Application no. 39660/02, 18 February 2010, [48].

See further the discussion of Pishchalnikov and waiver of the right to access a lawyer at Sect. 2.3.2.2.3 .

(ECtHR) John Murray v United Kingdom , Application no. 18731/91, 8 February 1996, [66].

(ECtHR) John Murray v United Kingdom , Application no. 18731/91, 8 February 1996, [66, 70]; art. 6(3)(c) gives a person who has been charged with a criminal offence, a right to defend themselves through legal assistance; in relation to denial of access to a lawyer, see the more recent decision of ECtHR (GC), Öcalan v. Turkey , Application no. 46221/99, 12 May 2005, [131].

(ECtHR) Ibrahim and Others v the United Kingdom , Application no. 50541/08 and others, 16 December 2014.

(ECtHR) Brennan v. the United Kingdom , Application no. 39846/98, 16 October 2001.

(ECtHR) Pishchalnikov v. Russia , Application no. 7025/04, 24 September 2009.

(ECtHR) Pishchalnikov v. Russia , Application no. 7025/04, 24 September 2009, [8, 72 and 75].

(ECtHR) Pishchalnikov v. Russia , Application no. 7025/04, 24 September 2009, [66].

(ECtHR) Pishchalnikov v. Russia , Application no. 7025/04, 24 September 2009, [69].

(ECtHR) Pishchalnikov v Russia, Application no. 7025/04, 24 September 2009, [65].

(ECtHR) Pishchalnikov v. Russia , Application no. 7025/04, 24 September 2009, [84–85].

(ECtHR) Pishchalnikov v. Russia , Application no. 7025/04, 24 September 2009, [86].

Resolution 73(5) of the Committee of Ministers of the Council of Europe, Standard Minimum Rules for the Treatment of Prisoners, Rule 93.

(ECtHR) Pishchalnikov v. Russia , Application no. 7025/04, 24 September 2009, [67].

(ECtHR) Pishchalnikov v. Russia , Application no. 7025/04, 24 September 2009, [78].

(ECtHR) Salduz v. Turkey , Application no. 36391/02, 27 November 2008, [59]; Pishchalnikov v. Russia , Application no. 7025/04, 24 September 2009, [79].

(ECtHR) Salduz v. Turkey , Application no. 36391/02, 27 November 2008, [59]; Pishchalnikov v. Russia , Application no. 7025/04, 24 September 2009, [79]; see also Lazarenko v The Ukraine , Application no. 22313/04, 28 October 2010 the applicant signed a waiver without being aware of the seriousness of the allegations and the penalty he may face and the ECtHR found a violation of art. 6; but see Trymbach v The Ukraine , Application no. 44385/02, 12 January 2012, in which the ECtHR found that voluntarily (and genuinely) signing a document which detailed his procedural rights was compliant with art. 6 because the waiver did not appear to have any bearing on the fairness of the proceedings, where the applicant consistently advanced the same version of events: [63–65].

(ECtHR) Pishchalnikov v. Russia , Application no. 7025/04, 24 September 2009, [79].

(ECtHR) Pishchalnikov v. Russia , Application no. 7025/04, 24 September 2009, [77].

(ECtHR) Sejdovic v. Italy , Application no. 56581/00, 1 March 2006, [86].

See further Harris et al. ( 2014 ), p. 414.

Cape et al. ( 2010 ), p. 4.

(ECtHR) Panovits v. Cyprus , Application no. 4268/04, 11 December 2008, [74]; see also (ECtHR) Dayanan v. Turkey , Application no. 7377/03, 13 October 2009, [32].

(ECtHR) Tsonyo Tvsonev v. Bulgaria no. 2 , Application no. 2376/03, 14 January 2010, [40].

(ECtHR) Croissant v Germany , Application no. 13611/88, 25 September 1992.

The obligation to repay may be based on an assessment of the convicted person’s economic status at the time he or she is required to reimburse the state: (ECtHR) Croissant v Germany , Application no. 13611/88, 25 September 1992, [34–35].

(ECtHR) Croissant v Germany , Application no. 13611/88, 25 September 1992, [36]. The court emphasised that the German scheme allowed for the opportunity for debt relief based on the inability of the convicted person to pay: [21, 37–38].

See further, (ECtHR) Croissant v Germany , Application no. 13611/88, 25 September 1992, [27–38].

(ECommHR) Mortensen v Denmark , Application no. 24867/94, 15 May 1996.

European Commission, Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon the deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty, OJEU 6 November 2013 L 294/1.

Legal Experts Advisory Panel (LEAP) ( 2014 ), [46]; but see [30–31] and [41] where concerns are raised about implementation of the roadmap directives generally and more specifically, inter alia , in relation to Denmark, about effective participation of a defence lawyer at police interviews, the legal aid system and an inadequate system of redress in the evaluation of evidence to address breach of access to a lawyer at [49], [52] and [53], respectively.

See the preamble of European Commission, Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon the deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty, OJEU 6 November 2013 L 294/1.

European Commission, Proposal for a Directive of the European Parliament and of the Council on the right of access to a lawyer in criminal proceedings and on the right to communicate upon arrest, Brussels, 8 June 2011, COM (2011) 326, 2011/0154 (COD), [13].

(ECtHR) Allan v. The United Kingdom , Application No. 48539/99, 5 November 2002, [44].

(ECtHR) Allan v. The United Kingdom , Application No. 48539/99, 5 November 2002, [50].

At [30–33] the ECtHR considered the decisions of R. v. Herbert [1990] 2 Supreme Court Reports 151; R. v. Broyles [1991] 3 Supreme Court Reports 595; R. v. Liew [1999] 3 Supreme Court Reports 227; and R. v. Swaffield and Pavic [1998] High Court of Australia 1. At [51] the Court also referred to s. 7 of the Canadian Charter of Rights and Freedoms, which guarantees a fair trial.

(ECtHR) Allan v. The United Kingdom , Application No. 48539/99, 5 November 2002, [51].

(ECtHR) Allan v. The United Kingdom , Application No. 48539/99, 5 November 2002, [52].

(ECtHR) Allan v. The United Kingdom , Application No. 48539/99, 5 November 2002, [52]. In its judgment the Court referred to a number of relevant judgments from Australia and Canada.

See further Jackson and Summers ( 2012 ), p. 246, where it is argued that the ECtHR’s case-law restricts the protection of a suspect or accused from the inherently coercive atmosphere of police questioning.

Jackson and Summers ( 2012 ), pp. 177–179, referring to the decision in Portmann v Switzerland . See further Sect. 2.3.2.5.3, about the use of listening devices in police or prison cells after an accused has asserted the right to silence.

This view is reflected in art. 67(1)(g) of the Rome Statute of the International Criminal Court.

(ECtHR) John Murray v. The United Kingdom , Application no. 18731/91, 8 February 1996, [41–44, 46].

(ECtHR) John Murray v. The United Kingdom , Application no. 18731/91, 8 February 1996, [47].

(ECtHR) John Murray v. The United Kingdom , Application no. 18731/91, 8 February 1996, [50].

(ECtHR) John Murray v. The United Kingdom , Application no. 18731/91, 8 February 1996, [48, 51, 52].

(ECtHR) John Murray v. The United Kingdom , Application no. 18731/91, 8 February 1996, [54].

(ECtHR) John Murray v. The United Kingdom , Application no. 18731/91, 8 February 1996, [66].

(ECtHR) John Murray v. The United Kingdom , Application no. 18731/91, 8 February 1996, [63, 66, 70]. See further in relation to the right to access a lawyer at Sect. 2.3.2.2.2 above.

(ECtHR) Condron v. The United Kingdom , Application no. 35718/97, 2 May 2000, [61–62].

(ECtHR) Condron v. The United Kingdom , Application no. 35718/97, 2 May 2000, [61–62, 66].

(ECtHR) Saunders v The United Kingdom , Application no. 19187/91, 17 December 1996.

(ECtHR) Saunders v The United Kingdom , Application no. 19187/91, 17 December 1996, [67]; see further (Commission—admissibility) Abas v The Netherlands , Application no. 27943/95, 26 February 1997; (ECtHR) IJL, GMR and AKP v The United Kingdom , Application no. 29522/95, 30056/96 and 30574/96, 19 September 2000; Emmerson et al. ( 2012 ), p. 617.

(ECtHR) Saunders v The United Kingdom , Application no. 19187/91, 17 December 1996, [69].

(ECtHR) Saunders v The United Kingdom , Application no. 19187/91, 17 December 1996, [75].

(ECtHR) Saunders v The United Kingdom , Application no. 19187/91, 17 December 1996, [71–72].

(ECtHR) Saunders v The United Kingdom , Application no. 19187/91, 17 December 1996, [74]. This is consistent with the decision of the Court in (ECtHR GC) Gäfgen v Germany , Application no. 22978/05, 1 June 2010, where the Court held that the gravity of offending was not relevant to an assessment of fairness under art. 6 in relation to coercion by threats to torture a suspect.

(ECtHR) Heaney and McGuinness v Ireland (Application no. 34720/97), 21 March 2001.

(ECtHR) Heaney and McGuinness v Ireland (Application no. 34720/97), 21 March 2001, [55]; but see (ECtHR) King v The United Kingdom , Admissibility decision, 8 April 2003.

(ECtHR) Heaney and McGuinness v Ireland (Application no. 34720/97), 21 March 2001, [57–58].

(ECtHR) O’Halloran and Francis v The United Kingdom , Application nos. 15809/02 and 25624/02, 29 June 2007; see also, (ECtHR) Weh v. Austria , Application no. 38544/97, 8 April 2004.

(ECtHR) O’Halloran and Francis v The United Kingdom , Application nos. 15809/02 and 25624/02, 29 June 2007, [53].

(ECtHR) O’Halloran and Francis v The United Kingdom , Application nos. 15809/02 and 25624/02, 29 June 2007, [55].

(ECtHR) O’Halloran and Francis v The United Kingdom , Application nos. 15809/02 and 25624/02, 29 June 2007, [57–60]; (ECtHR) Weh v. Austria , Application no. 38544/97, 8 April 2004, [54].

(ECtHR) O’Halloran and Francis v The United Kingdom , Application nos. 15809/02 and 25624/02, 29 June 2007, [61–63].

Emmerson et al. ( 2012 ), p. 622; see also Antonio Sánchez López v. Spain , Communication No. 777/1997, U.N. Doc. HR COMMITTEE/C/67/D/777/1997 (25 November 1999), where the Human Rights Commission considered that a similar complaint by an owner of a vehicle, who was caught speeding, was inadmissible because he was punished for non-cooperation with the authorities and not for traffic offences.

Jackson and Summers ( 2012 ), p. 274.

(ECtHR) Weh v Austria , Application no. 38544/97, 8 April 2004 [40–54]; see further Jackson and Summers ( 2012 ), pp. 251–252.

Emmerson et al. ( 2012 ), p. 622.

(ECtHR GC) Gäfgen v. Germany , Application no. 22978/05, 1 June 2010 [166–167].

(ECtHR GC) Gäfgen v. Germany , Application no. 22978/05, 1 June 2010 [178].

(ECtHR GC) Gäfgen v. Germany , Application no. 22978/05, 1 June 2010 [175–176].

(ECtHR) Khan v. The United Kingdom , Application no. 35394/97, 12 May 2000.

(ECtHR) Khan v. United Kingdom , Application no. 35394/97, 12 May 2000, [37].

(ECtHR) Khan v. United Kingdom , Application no. 35394/97, 12 May 2000, [38–40], applying the decision in Schenk v. Switzerland , Application no. 10862/84, 12 July 1988; see also (ECtHR) Heglas v. the Czech Republic , Application no. 5935/02, 1 March 2007, in which the Court similarly found that the lack of a regulatory scheme in relation to dictaphones and lists of telephone numbers gave rise to a breach of art. 8, but their use in criminal proceedings did not violate art. 6, in the circumstances of the case.

(ECtHR GC) Bykov v. Russia , Application no. 4378/02, 10 March 2009.

(ECtHR GC) Bykov v. Russia , Application no. 4378/02, 10 March 2009, [95].

(ECtHR GC) Bykov v. Russia , Application no. 4378/02, 10 March 2009, [103].

(ECtHR GC) Bykov v. Russia , Application no. 4378/02, 10 March 2009, [98].

(ECtHR GC) Bykov v. Russia , Application no. 4378/02, 10 March 2009, [104].

Wu ( 2011 ), p. 95.

See Chaps. 3 and 4 ; see also Harris et al. ( 2014 ), p. 418.

See further (ECtHR) Edwards v The United Kingdom , Application no. 13071/87, 16 December 1992, [34].

(ECtHR) Schenk v. Switzerland , Application no. 10862/84, 12 July 1988, [46]; see also (ECtHR GC) Jalloh v Germany , Application no. 54810/00, 11 July 2006, [94–95].

(ECtHR) Schenk v. Switzerland , Application no. 10862/84, 12 July 1988.

(ECtHR) Schenk v. Switzerland , Application no. 10862/84, 12 July 1988, [48].

(ECtHR) Schenk v. Switzerland , Application no. 10862/84, 12 July 1988, [49].

ECtHR, Tony Michael Chalkley v. The United Kingdom , Application no. 63831/00, 12 June 2003.

ECtHR, Tony Michael Chalkley v. The United Kingdom , Application no. 63831/00, 12 June 2003; see also ECtHR, Perry v. The United Kingdom , Application no. 63737/00, Decision as to Admissibility, 26 September 2002 in which the ECtHR found that the use of unauthorized video surveillance instead of an identification parade, which the applicant had already objected to, did not affect the applicant’s defence rights at trial and was therefore not contrary to art. 6.

See further Jackson and Summers ( 2012 ), pp. 182–187, where covert surveillance cases are discussed in light of the decision of Allan .

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Billing, F.M.W. (2016). Development of the Right to Silence in International Human Rights Law. In: The Right to Silence in Transnational Criminal Proceedings. Springer, Cham. https://doi.org/10.1007/978-3-319-42034-9_2

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Law and Language: Current Legal Issues Volume 15

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22 Silence, Speech, and the Paradox of the Right to Remain Silent in American Police Interrogation

Published: February 2013
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In contemporary jurisprudence, the right to remain silent has been valorized as foundational to human dignity and to human expressive freedom. The right to remain silent is also likely the criminal law doctrine most recognized by the American general public. In fact, given the worldwide marketing of American movies and television dramas, the Miranda warning, beginning, ‘You have the right to remain silent’, may well be the single most widely known principle of criminal law in the world. Yet, despite its deep roots in American legal history and its entrenched status in current popular culture, the right to silence as articulated in Miranda has been subject to a barrage of judicial limitations, qualifications, and exceptions in recent years, to the point where it currently can scarcely be said to provide any meaningful constraint on police interrogation at all. This chapter begins by tracing the origins of the Miranda rule. It then discusses remaining silent as an exercise of the right to remain silent; Berghuis v. Thompkins and its consequences for the right to remain silent; speaking to claim the right to remain silent; and whether Miranda warnings are still relevant.

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Analyzing the Legal and Social Implications: a Summary of Roe V. Wade

This essay about the impact and controversies surrounding the Roe v. Wade Supreme Court decision discusses how it established a woman’s right to abortion under the privacy protections of the Fourteenth Amendment. It addresses both the legal challenges and societal divisions it has prompted over the years, including state-level restrictions and the significant political and cultural debates it has ignited. The essay also considers the broader implications for women’s reproductive rights and health, while acknowledging the persistent access issues and social stigma.

How it works

The decision in Roe v. Wade, made by the United States Supreme Court in 1973, has profoundly influenced both the legal framework and societal views on abortion and reproductive rights. The ruling established a woman’s right to make decisions about her own pregnancy, emphasizing this as a matter of privacy protected under the Due Process Clause of the Fourteenth Amendment. This significant judicial recognition shifted how reproductive rights are perceived, limiting the state’s ability to impose blanket prohibitions or severe constraints on abortions without a substantial justification.

Critics, however, have charged Roe v. Wade with judicial overreach, claiming the Court engaged in activism by creating law from the bench. This decision also sparked a vehement and ongoing controversy regarding the ethical and moral dimensions of abortion, leading to vehement opposition from religious and pro-life groups who view the ruling as a violation of life’s sanctity.

Over the years, the debates and disputes surrounding abortion have not waned, with numerous states attempting to erode the Roe decision through various restrictive measures. These include obligatory waiting periods and rigorous regulations for clinics, highlighting the ongoing tension between safeguarding women’s rights and protecting fetal interests.

The abortion issue has also become a significant element in American political and cultural divides, influencing elections and public policy discussions. Political candidates are often evaluated on their abortion stance, and the topic is a central issue in legislative sessions and judicial nominations.

Socially, Roe v. Wade has empowered women by broadening their control over reproductive choices, which has had ripple effects on family planning and women’s health. Access to safe, legal abortions is linked to lower maternal mortality rates and has allowed women more autonomy in managing their reproductive health.

Nevertheless, access to abortion services is uneven, often adversely affecting marginalized groups and deepening social inequities. Rural regions, in particular, suffer from a lack of adequate healthcare facilities, and economic hurdles can restrict access for low-income individuals.

Moreover, the stigma associated with abortion endures, creating a culture of silence and judgment that can affect women’s decisions about their pregnancies. Overcoming this stigma necessitates not only legal measures but also a shift in societal attitudes towards normalizing reproductive choices.

As we look to the future, the principles established in Roe v. Wade regarding personal autonomy and constitutional protections remain crucial in guiding ongoing debates about reproductive rights and justice. The evolving dynamics of the Supreme Court and the political landscape continue to make the future of abortion rights uncertain. However, the enduring principles from Roe v. Wade continue to underscore the broader quest for equality, dignity, and human rights in evolving societal contexts.

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Analyzing the Legal and Social Implications: A Summary of Roe v. Wade. (2024, May 12). Retrieved from https://papersowl.com/examples/analyzing-the-legal-and-social-implications-a-summary-of-roe-v-wade/

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PapersOwl.com. (2024). Analyzing the Legal and Social Implications: A Summary of Roe v. Wade . [Online]. Available at: https://papersowl.com/examples/analyzing-the-legal-and-social-implications-a-summary-of-roe-v-wade/ [Accessed: 14 May. 2024]

"Analyzing the Legal and Social Implications: A Summary of Roe v. Wade." PapersOwl.com, May 12, 2024. Accessed May 14, 2024. https://papersowl.com/examples/analyzing-the-legal-and-social-implications-a-summary-of-roe-v-wade/

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The Radical Case for Free Speech

By Jay Caspian Kang

Illustration of a bird caged inside a megaphone.

If you read certain columnists or follow a particular set of writers and pundits on social media—including me—you know that the First Amendment is always in crisis. Nearly every incursion, whether it’s the shouting down of a conservative speaker on a college campus or an alleged incident of hate speech, gets shoved into a civil-liberties outrage machine, generating new cycles of vitriol and pushback. And yet the resulting debates, on op-ed pages and elsewhere, can feel strangely abstract and academic. The pundits and scholars who participate in them sometimes seem like taxonomists who show more concern for the precision of their determinations than for real-world outcomes for speech and expression.

Police in riot gear may swarm onto the grounds of a college campus in a show of force and intimidation, and pundits will conclude that the relevant concern is whether students have the right to forcefully occupy a building. The Mayor of New York may intimate that it is his job, as an elected official, to shield the minds of college students from the influence of “outside agitators” who have infiltrated campuses, and some of these pundits may seem unalarmed. After police officers broke up a student protest at Columbia University, the deputy commissioner of the New York Police Department went on television and held up a book titled “ Terrorism: A Very Short Introduction ,” citing it as evidence that someone was “radicalizing” students. The book is not an instruction manual—it is a historical and philosophical primer sold in many university bookstores. But both the top elected official in New York City and one of its top cops appear to believe that they have the authority to tell students whom they should associate with and what books they should and should not read.

I may now be guilty of another flaw in contemporary free-speech debates, which is how frequently the debaters criticize others for not caring about the right things. This reflex, with its attendant charges of hypocrisy, makes up the vast majority of modern free-speech discourse. If you are outraged by police repression of pro-Palestine encampments, you will be asked what you would say if a pro-Trump rally had been shuttled off campus. If you stand up for a conservative speaker who has been deplatformed by chanting students, you will be asked to offer the same defense for someone who’s lost a job on account of a social-media post that was sympathetic to the people in Gaza. The spirit behind such tests isn’t wrong. The defense of free speech should be viewpoint-neutral, and many people—including quite a few elected officials—are hypocritical about such things. (Consider Texas’s governor, Greg Abbott , who signed a campus free-speech law in 2019, in response to the deplatforming of a few conservative speakers, and then turned around and brought in what certainly appeared to be excessive force against campus protesters in late April of this year.) But the discussion around free speech has become mired in these hypotheticals. What should be a lively and malleable conversation about the law and what it protects has instead devolved into a series of online show trials, polarized along familiar political lines.

I have taken part in these debates for years, mostly to urge the American political left to revive the radical free-speech movements of the past . These efforts, for the most part, have been laughably unsuccessful. I’m open to the possibility that this is a personal failing, but I am convinced that some of the problem lies with the broader tenor of the conversation, which has become histrionic, pedantic, ad hominem, and overly concerned with what happens on college campuses. If you want to engage in a back-and-forth about free speech these days, you should expect to be pathologized, quizzed on legal trivia, and labelled a hypocrite. Who, in their right mind, would want any of that?

The First Amendment has its stewards, and, for better or worse, the conversation around free speech tends to revolve around what they say. Among the most prominent are the American Civil Liberties Union and the Foundation for Individual Rights and Expression. Both organizations are devoted to the freedom of speech, and both maintain that they are nonpartisan. But the A.C.L.U. has long been associated with progressive politics, and FIRE , which has received much of its funding from right-leaning foundations, is sometimes pigeonholed as conservative, though it strives to remain neutral. Both groups not only provide legal support for people whose First Amendment rights have been violated but also engage, to varying degrees, in free-speech advocacy, seeking to expand the parameters of acceptable speech.

In the past two weeks, as protests against the war in Gaza have spread on college campuses, FIRE has criticized an antisemitism bill that was passed by the House of Representatives which would broaden the definition of antisemitism used by the Department of Education, decried the arrest of a photojournalist at a protest at the University of Texas at Austin, and condemned a violent pro-Israel counter-protest at U.C.L.A. But the group has also pointed out that universities mostly have a right to ban encampments and, in reference to events at Columbia, wrote , “Occupying a campus building, blocking students from attending classes, and vandalizing property is not protected by the First Amendment, full stop. It’s illiberal. It’s illegal. And it should be punished.” Taken together, these statements can feel unsatisfying and question-begging, if not outright contradictory. Does anyone seriously believe that the First Amendment protects the right to smash windows and occupy buildings? If not, why does FIRE regard it as important to point this out—and at a moment when student journalists are being forcefully removed from their campus by police officers? Does FIRE want to advocate for free speech, or play referee in a dispute about what constitutes a real First Amendment violation and what does not?

I asked Will Creeley, the legal director of FIRE , how he would answer that question. “To my mind,” he wrote, in a thoughtful and lengthy e-mail, “the answer—has to be—that we’re doing both.” He noted that the organization was currently fighting a host of legal battles that would expand the First Amendment in areas where protections were “uncertain, ill-defined, under challenge, or insufficient.” He added that the organization also makes “cultural, non-legal arguments that aim to cultivate a broader societal understanding of, and support for, free speech principles.” These include the idea that, if someone says something you don’t like, you should engage with them using more speech rather than trying to blacklist them or shout them down.

This dual burden of championing free speech and adjudicating First Amendment cases isn’t easy to navigate, in part because many people will, perhaps rightfully, detect political motivations behind the cultural, nonlegal arguments that Creeley mentioned. For the past decade or so, the most well-publicized incidents of shouting down speakers have taken place on college campuses and have involved the deplatforming of conservatives. Creeley, for his part, is aware that the public perception of his organization will be shaped by the cases it chooses to take on. “My hope for FIRE is that sooner or later, we have a case for everyone,” he wrote. “A case in which everyone sees us defending speech they like or vindicating the rights of a speaker they empathize with.”

The A.C.L.U. has done more advocacy for the ongoing student protests than its counterparts at FIRE. The Southern California branch of the organization sent an open letter to the chancellor of U.C.L.A. to denounce “efforts to suppress the peaceful right to free expression and dissent”; in response to a crackdown at Emory University, which included the violent arrest of an economics professor, the A.C.L.U. of Georgia issued a statement invoking the history of Atlanta as a “place where citizens could freely exercise their right to protest.” According to Ben Wizner, the director of the A.C.L.U.’s Speech, Privacy, and Technology Project, most of the organization’s interventions in the recent campus controversies have addressed instances in which there was no clear violation of First Amendment rights. These are cases—such as the University of Southern California’s decision to cancel a commencement address by a Muslim student, on account of unspecified safety concerns—in which the A.C.L.U. saw a need to intervene for the cause of free expression.

Wizner, like Creeley, believes that any commitment to free speech must remain viewpoint-neutral. But he also said that defenders of free speech should have priorities. “The reason why I come to the First Amendment is a distrust of government power,” he told me. “The most obvious abuse of government power is disproportionate use of force on peaceful protesters. So you have to lead with that in moments like these.”

The A.C.L.U. does not have an unrestrained, anarchic vision of the First Amendment. Wizner mentioned a case that the A.C.L.U. had brought against Clearview, a company that was building a biometric tracking tool with facial-recognition technology. The A.C.L.U. argued that Clearview was violating the privacy rights of millions of people who had not consented to having their faceprints recorded. Clearview maintained that its activities should be protected by the First Amendment , because it was taking publicly available photographs and then expressing an opinion about who the person in the images might be. The A.C.L.U. decided that the privacy concerns were far more important than Clearview’s vision of free speech and rejected what they saw as an overly expansive interpretation of the First Amendment. “What you really need to have is a theory of what the First Amendment is for,” Wizner said, “not it being the biggest thing it can be.”

The A.C.L.U. and FIRE may have a complex set of responsibilities, but the matter is simpler for the rest of us who consider ourselves free-speech advocates. We are unencumbered by procedural questions, and can simply look to protect every nonviolent act of dissent from government interference. Civil disobedience, which includes both the occupation of a campus building to call for a ceasefire and the breaking of COVID lockdowns to hold an anti-vaccine rally in a public square, needn’t be discussed only through the lens of the First Amendment. We can also make a moral appeal, pointing to historical events, from the Boston Tea Party under British rule to the lunch-counter sit-ins throughout the South during the civil-rights movement. What I am proposing is not novel, simply a disentangling of some ideas that I believe have been caught up in years of fruitless debate: a free-speech radicalism that grounds itself in widely held beliefs about American liberty and tries to build a broad moral consensus around the universal right to dissent and the importance of civil disobedience—even the type that might get someone thrown in jail.

Dissent involves genuine confrontation, which is why, although social-media posts may spread quickly and even get people into the streets, they should be seen for what they are: a precursor to the real thing. Social media has undeniably become the public square, but those platforms have actually served to dull dissent and turn legitimate protest into an individualistic meme war in which people pick a side and add to a junk pile of online ephemera. Speech is an act that occupies physical spaces, and, in doing so, forces people to look up from their phones and respond rather than simply scroll past it. I do not believe there is much potential for political change in purely online dissent, and it appears that today’s young people, who protested en masse in 2020, are coming to a similar conclusion. Democracy requires a healthy form of dissent, and nothing is more innervating than standing with other people on a sidewalk or on a campus quad or in a public park. Real communities and political possibilities are shaped much more quickly in those spaces, and the free-speech advocacy that I am proposing should always remind its adherents of that. The encampments sprouting up on campuses around the country—and the counter-protests that sometimes accompany them—suggest that much of the public understands this. A modern free-speech movement should, perhaps counterintuitively, direct its focus away from the Internet and, instead, actively encourage dissenters to take their messages to the streets.

Sticking to radical free-speech principles requires discipline, which is something I have not always fully understood. In the past, I was much more skeptical about complaints regarding students shouting down conservative speakers at college functions—I believed that those students were exercising their own First Amendment rights. But the past few years have convinced me that the majority of Americans see a censorious glint in the eyes of the shouters, even when they agree with the shouters politically. I believe those same people can be persuaded to tolerate disruptive, nonviolent protests, but that their sympathies are being swayed by public deplatformings.

These principles also entail disengaging from the construction of safe spaces, the forbidding of certain words, and the prosecution of hate speech—practices that have offered little in the way of real protection but provided a good deal of reactionary fodder. This means that free-speech radicals need to reject the premise that a certain set of words should be set aside as “hate” and prosecuted as crimes. Words are not violence.

The arguments that progressives have made about safety in order to silence speakers with objectionable views have lately been turned back around on them. This might seem like justice to some, but it only produces an endless volley of silly accusations: everyone is a bigot; everyone is a hypocrite; nobody understands the First Amendment; you are always censoring me and vice versa. Young people will continue to engage in legal, peaceful protest and civil disobedience. And, as their protests escalate, even if they do so peacefully, they will meet condemnation and repression from both sides of the aisle. The twenty-tens saw more worldwide street protests than any decade in recorded history. The twenty-twenties have seen more of the same. Does anyone think that we currently have the moral or rhetorical language to address what is happening not only in this country but on campuses and in city squares around the world? The First Amendment is not enough. ♦

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The Kids Are Not All Right. They Want to Be Heard

By Keeanga-Yamahtta Taylor

When a Pro-Free-Speech Dean Shuts Down a Student Protest

By Louis Menand

How Columbia’s Campus Was Torn Apart Over Gaza

By Andrew Marantz

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Biden says ‘order must prevail’ during campus protests over the war in Gaza

President Joe Biden is defending the right to free speech but says “order must prevail” on college campuses. Biden’s remarks broke days of silence as police crack down on encampments erected to show solidarity with Gaza.

President Joe Biden delivers remarks about student protests over the war in Gaza, from the Roosevelt Room of the White House, Thursday, May 2, 2024, in Washington. (AP Photo/Evan Vucci)

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Pro-Palestine student activists face off with New York Police Department officers during a raid on Columbia University’s campus at the request of Columbia University President Minouche Shafik on Tuesday evening, April 30, 2024 in New York. NYPD officers, including those from the police department’s Strategic Response Group, arrested approximately 100 people as they dismantled encampments and removed individuals occupying Hamilton Hall. (Seyma Bayram via AP)

A pro Palestinians sign is shown on the UCLA campus, the morning after clashes between Pro-Israel and Pro-Palestinian groups, Wednesday, May 1, 2024, in Los Angeles. (AP Photo/Jae C. Hong)

UCLA professor Nick Shapiro speaks at a news conference on the UCLA campus, after nighttime clashes between Pro-Israel and Pro-Palestinian groups, Wednesday, May 1, 2024, in Los Angeles. (AP Photo/Jae C. Hong)

WASHINGTON (AP) — President Joe Biden on Thursday rejected calls from student protesters to change his approach to the war in Gaza while insisting that “order must prevail” as college campuses across the country face a wave of violence, outrage and fear.

“Dissent is essential for democracy,” Biden said at the White House. “But dissent must never lead to disorder.”

The Democratic president broke days of silence on the protests with his remarks, which followed mounting criticism from Republicans who have tried to turn scenes of unrest into a campaign cudgel. By focusing on a law-and-order message while defending the right to free speech, Biden is grasping for a middle ground on an intensely divisive issue in the middle of his reelection campaign.

What to know about student protests

What’s happening: Student protests over the Israel-Hamas war have popped up at many college campuses following the arrest of demonstrators in April at Columbia University.
Why : The students are protesting the war’s death toll and are calling for universities to separate themselves from any companies that are advancing Israel’s military efforts in Gaza.
On campus : As students around the country protest, student journalists are covering their peers in a moment of uncertainty.

He largely sidestepped protesters’ demands, which have included ending U.S. support for Israeli military operations. Asked after his remarks whether the demonstrations would prompt him to consider changing course, Biden responded with a simple “no.”

Biden said that he did not want the National Guard to be deployed to campuses. Some Republicans have called for sending in troops, an idea with a fraught history. Four students were shot and killed at Kent State University by members of the Ohio National Guard during protests over the Vietnam War in 1970.

Police advance on pro-Palestinian demonstrators on the UCLA campus Thursday, May 2, 2024, in Los Angeles. (AP Photo/Ethan Swope)

Tensions on college campuses have been building for days as demonstrators refuse to remove encampments and administrators turn to police to clear them by force , leading to clashes that have seized widespread attention.

Biden said he rejected efforts to use the situation to “score political points,” calling the situation a “moment for clarity.”

“There’s the right to protest, but not the right to cause chaos,” Biden said shortly before leaving the White House for a trip to North Carolina. “People have the right to get an education, the right to get a degree, the right to walk across campus safely without fear of being attacked.”

Pro-Palestine student activists face off with New York Police Department officers during a raid on Columbia University's campus at the request of Columbia University President Minouche Shafik on Tuesday evening, April 30, 2024 in New York. NYPD officers, including those from the police department's Strategic Response Group, arrested approximately 100 people as they dismantled encampments and removed individuals occupying Hamilton Hall. (Seyma Bayram via AP)

The White House also maintained its focus on combating antisemitism. Doug Emhoff, husband of Vice President Kamala Harris, spoke to Jewish students and Hillel leaders on Thursday to hear about their experience with threats and hate speech, according to a White House official.

Biden will make his own visit to a college campus on May 19 when he’s scheduled to deliver the commencement address at Morehouse University in Atlanta.

His last previous public comment on the demonstrations came more than a week ago , when he condemned “antisemitic protests” and “those who don’t understand what’s going on with the Palestinians.”

The White House, which has been peppered with questions by reporters, had gone only slightly further than the president. On Wednesday, press secretary Karine Jean-Pierre said that Biden was “monitoring the situation closely” and that some demonstrations had stepped over a line that separated free speech from unlawful behavior.

“Forcibly taking over a building,” such as what happened at Columbia University in New York, “is not peaceful,” she said. “It’s just not.”

A pro Palestinians sign is shown on the UCLA campus, the morning after clashes between Pro-Israel and Pro-Palestinian groups, Wednesday, May 1, 2024, in Los Angeles. (AP Photo/Jae C. Hong)

Biden’s latest remarks weren’t well received in some corners of the Democratic Party.

“We need to prevent lawlessness in society. We need to have protections against hate speech,” said a social media post from Patrick Gaspard, president of the Center for American Progress and a former White House political director under President Barack Obama. “But we need to be able to hold space for active dissent and activism that is discomforting without blanket accusations of hate and violence against all activists.”

But Biden’s team has expressed confidence that his stance appeals to the widest array of voters. It also echoes his approach to nationwide unrest after the murder of George Floyd by a police officer four years ago, a politically volatile situation in the middle of his campaign against then-President Donald Trump.

“I want to make it absolutely clear rioting is not protesting, looting is not protesting,” Biden said then in remarks that his team turned into an advertisement. “It’s lawlessness, plain and simple, and those that do it should be prosecuted.”

Biden has never been much for protests of any kind. His career in elected office began as a county official when he was only 28 years old, and he’s always espoused the political importance of compromise.

As college campuses convulsed with anger over the Vietnam War in 1968, Biden was in law school at Syracuse University.

“I’m not big on flak jackets and tie-dyed shirts,” he said years later. “You know, that’s not me.″

The White House has also maintained its focus on combating antisemitism. Doug Emhoff, husband of Vice President Kamala Harris, spoke to Jewish students and Hillel leaders on Thursday to hear about their experience with threats and hate speech, according to a White House official.

Despite the administration’s criticism of violent college protests and Biden’s refusal to heed demands to cut off U.S. support for Israel, Republicans blame Democrats for the disorder and have used it as a backdrop for press conferences.

“We need the president of the United States to speak to the issue and say this is wrong,” House Speaker Mike Johnson, a Louisiana Republican, said on Tuesday. “What’s happening on college campuses right now is wrong.”

Johnson visited Columbia University with other members of his caucus last week. House Republicans sparred verbally with protesters while speaking to the media at George Washington University in Washington, D.C., on Wednesday.

Trump, who is running for another term as president, also criticized Biden in an interview with Sean Hannity on Fox News.

“Biden has to do something,” he said. “Biden is supposed to be the voice of our country, and it’s certainly not much of a voice. It’s a voice that nobody’s heard.”

He repeated his criticisms on Wednesday during a campaign event in Waukesha, Wisconsin.

“The radical extremists and far-left agitators are terrorizing college campuses, as you possibly noticed,” Trump said. “And Biden’s nowhere to be found. He hasn’t said anything.”

Kate Berner, who served as deputy communications director for Biden’s campaign in 2020, said Republicans already had tried the same tactic during protests over Floyd’s murder.

“People rejected that,” she said. “They saw that it was just fearmongering. They saw that it wasn’t based in reality.”

Apart from condemning antisemitism, the White House has been reluctant to directly engage on the issue.

Jean-Pierre repeatedly deflected questions during a briefing on Monday.

Asked whether protesters should be disciplined by their schools, she said “universities and colleges make their own decisions” and “we’re not going to weigh in from here.”

Pressed on whether police should be called in, she said “that’s up to the colleges and universities.”

Asked on Thursday why Biden chose to speak on the matter after police had arrested protesters at the University of California, Los Angeles and at universities in New York City, Jean-Pierre stressed instead the importance of any protests being nonviolent.

“We’ve been very consistent here,” she said. “Americans have the right to peacefully protest as long as it’s within the law and violence is not protected.”

Associated Press writer Adriana Gomez Licon in Miami and AP writer Colleen Long and White House Correspondent Zeke Miller in Washington contributed to this report.

President Biden breaks silence on campus unrest: 'Violent protest is not protected'

WASHINGTON ― President Joe Biden condemned violence, destruction and antisemitism on college campuses while defending the right for pro-Palestinian protesters to peacefully demonstrate in his first public address on this week's unrest on college campuses.

Biden, in previously unscheduled remarks Thursday from the White House Roosevelt Room, sought to strike a balance on the campus chaos, calling peaceful protest "in the best tradition of how Americans respond to consequential issues" but making clear "violent protest is not protected."

"Destroying property is not a peaceful protest. It's against the law. Vandalism, trespassing, breaking windows, shutting down campuses, forcing the cancelation of classes and graduations, none of this is a peaceful protest," Biden said. "Threatening people, intimidating people, instilling fear in people is not peaceful protest."

More: Columbia suspends protesting students; demonstrators take over university building: Updates

Biden had previously stayed silent on student protests that have erupted over Israel's war in Gaza. Biden's response has been made complicated by his reelection campaign as he looks to unify the Democratic coalition .

Prep for the polls: See who is running for president and compare where they stand on key issues in our Voter Guide

"We're a civil society and order must prevail," Biden said. "There’s the right to protest, but not the right to cause chaos."

Biden's steadfast backing of Israel's war against Hamas puts him at odds with many young progressive voters in his race against former President Donald Trump. Yet the scenes of violence on college campuses have opened new lines of attack by Trump and Republicans seeking to tie the chaos to Biden.

"In moments like this, there are always those who rush in to score political points," Biden said, "but this isn't a moment for politics, it's a moment for clarity."

Trump has taunted Biden about the protests for days, calling Biden "nowhere to be found" amid the unrest. But White House press secretary Karine Jean-Pierre rejected any notion that criticism from Trump prompted Biden's remarks.

"When it comes to something like this, he doesn't need to follow anyone," Jean-Pierre said.

Hundreds of protesters at college campuses across the country have been arrested this week during the wave of demonstrations. Police in riot gear arrested 132 people at UCLA in Los Angeles Wednesday night, a day after New York police arrested more than 300 individuals at Columbia University and City College.

More: Stay out or say more? President Biden faces lose-lose proposition with college protests

"We all see the images, and they put to the test two fundamental American principles," Biden said. "The first is the right to free speech and for people to peacefully assemble and make their voices heard. The second is the rule of law. Both must be upheld. We are not an authoritarian nation where we silence people or squash dissent."

The last time Biden had spoken publicly about the protests was to reporters on April 22, several days before police made mass arrests at Columbia University, UCLA and other colleges where students formed encampments or took over academic buildings.

Asked by a reporter whether the protests have forced him to reconsider his policy on Israel, Biden responded, “No.”

Biden also said he doesn’t believe the National Guard needs to intervene in protests like some Republicans have demanded.

In his remarks, Biden reiterated that he condemns antisemitism that has surfaced at some protests, saying "there should be no place in any campus, no place in America for antisemitism or threats of violence against Jewish students."

"It's simply wrong," Biden said.

Reach Joey Garrison on X, formerly Twitter, @joeygarrison.

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TikTok challenges U.S. ban in court, calling it unconstitutional

Bobby Allyn

TikTok's suit is in response to a law passed by Congress giving ByteDance up to a year to divest from TikTok and find a new buyer, or face a nationwide ban. Kiichiro Sato/AP hide caption

TikTok's suit is in response to a law passed by Congress giving ByteDance up to a year to divest from TikTok and find a new buyer, or face a nationwide ban.

TikTok and its parent company on Tuesday filed a legal challenge against the United States over a law that President Biden signed last month outlawing the app nationwide unless it finds a buyer within a year.

In the petition filed in the Court of Appeals for the District of Columbia Circuit, the company said the legislation exceeds the bounds of the constitution and suppresses the speech of millions of Americans.

"Banning TikTok is so obviously unconstitutional, in fact, that even the Act's sponsors recognized that reality, and therefore have tried mightily to depict the law not as a ban at all, but merely a regulation of TikTok's ownership," according to the filing.

The law, passed through Congress at lightning speed, which caught many inside TikTok off guard, is intended to force TikTok to be sold to a non-Chinese company in nine months, with the possibility of a three month extension if a possible sale is in play.

Yet lawyers for TikTok say the law offers the company a false choice, since fully divesting from its parent company, ByteDance, is "simply not possible: not commercially, not technologically, not legally," the challenge states. "And certainly not on the 270-day timeline required by the Act."

Anupam Chander, a law professor at Georgetown University who specializes in technology regulations, said if TikTok loses this legal fight, it will likely shut down in the U.S.

"The problem for TikTok is that they have a parent company that has these obligation in China, but they're trying to live by free speech rules by the United States," Chander said in an interview. "The question is whether American courts will believe that that's even possible."

TikTok says law based on "speculative and analytically flawed concerns"

Lawmakers in Washington have long been suspicious of TikTok, fearing its Chinese owner could use the popular app to spy on Americans or spread dangerous disinformation.

But in the company's legal petition, lawyers for TikTok say invoking "national security" does not give the government a free pass to violate the First Amendment, especially, TikTok, argues, when no public evidence has been presented of the Chinese government using the app as a weapon against Americans.

Possible TikTok ban could be 'an extinction-level event' for the creator economy

According to the filing, the law is based on "speculative and analytically flawed concerns about data security and content manipulation — concerns that, even if grounded in fact, could be addressed through far less restrictive and more narrowly tailored means."

New DOJ Filing: TikTok's Owner Is 'A Mouthpiece' Of Chinese Communist Party

Constitutional scholars say there are few ways for the government to restrict speech in a way that would survive a legal challenge. One of those ways is if the government can demonstrate a national security risk. Also key, legal experts say, is the government showing the speech suppression was the least restrictive option on the table.

TikTok said Congress ignored less restrictive ways of addressing the government's national security concerns.

"If Congress can do this, it can circumvent the First Amendment by invoking national security and ordering the publisher of any individual newspaper or website to sell to avoid being shut down," the filing states. "And for TikTok, any such divestiture would disconnect Americans from the rest of the global community."

Since more than 90% of TikTok's users are outside of America, Georgetown's Chander said selling the U.S.-based app to a different owner would cannibalize its own business.

"You can't really create a TikTok U.S., while having a different company manage TikTok Canada," Chander said in an interview. "What you're doing essentially is creating a rival between two TikToks," he said. " It may be better to take your marbles out of the United States and hope to make money outside of the U.S., rather than sell it at a fire-sale price."

TikTok critics call app a 'spy balloon on your phone'

The filing sets off what could be the most important battle for TikTok. It has been fending off legal challenges to its existence since former President Trump first sought to ban the app through an executive order in the summer of 2020. That effort was blocked by federal courts.

Since then, Democrats and Republicans have shown a rare moment of unity around calls to pressure TikTok to sever its ties with ByteDance, the Beijing-based tech giant that owns the video-streaming app.

Trump's Ban On TikTok Suffers Another Legal Setback

Congress has never before passed legislation that could outright ban a wildly popular social media app, a gesture the U.S. government has criticized authoritarian nations for doing.

In the case of TikTok, however, lawmakers have called the app a "spy balloon on your phone," emphasizing how the Chinese government could gain access to the personal data of U.S. citizens.

Worries also persist in Washington that Beijing could influence the views of Americans by dictating what videos are boosted on the platform. That concern has only become heightened seven months before a presidential election.

Yet the fears so far indeed remain hypothetical.

There is no publicly available example of the Chinese government attempting to use TikTok as an espionage or data collection tool. And no proof that the Chinese government has ever had a hand over what TikTok's 170 million American users see every day on the app.

TikTok says it offers U.S. a plan that would shut app down if it violated agreement

TikTok, for its part, says it has invested $2 billion on a plan, dubbed Project Texas, to separate its U.S. operation from its Chinese parent company. It deleted all of Americans' data from foreign servers and relocated all of the data to servers on U.S. soil overseen by the Austin-based tech company Oracle.

While the plan was intended to build trust with U.S. lawmakers and users, reports surfaced showing that data was still moving between staff in California and Beijing.

In the filing on Tuesday, TikTok said it submitted an agreement to the Committee on Foreign Investment in the United States, which has been probing the app for five years, that would allow the U.S. to suspend TikTok if it violated terms set forth in a national security plan.

But, lawyers for TikTok say, the deal was swept aside, "in favor of the politically expedient and punitive approach," the petition states.

Mnuchin claims he will place a bid to buy TikTok, even though app is not for sale

Despite the new law giving TikTok the ultimatum of selling or being shut down, there are many questions around how the app could even be bought by another company or group of investors.

Former Treasury Secretary Steven Mnuchin told NPR on Monday, he is planning to assemble a group of investors to try to purchase TikTok without the app's algorithm.

Mnuchin, who declined to answer additional questions, said in between sessions at the Milken Institute Global Conference in Los Angeles that the proposal to buy the app is still in the works, but he would not say when it would be formally submitted.

One major obstacle in any possible sale of TikTok is a glaring problem: The app is not for sale.

TikTok Ban Averted: Trump Gives Oracle-Walmart Deal His 'Blessing'

Despite the new law in the U.S., ByteDance says it does not intend to let go of the service. Furthermore, winning the support of China would be necessary, and officials in Beijing are adamantly against any forced sale.

In 2020, amid the Trump administration's clamp down on the app, China added "content-recommendation algorithms" to its export-control list, effectively adding new regulations over how TikTok's all-powerful algorithm could ever be sold.

ByteDance, not TikTok, developed and controls the algorithm that determines what millions see on the app every day. The technology has become the envy of Silicon Valley, and no U.S. tech company has been able dislodge TikTok's firm hold on the short-form video market. Experts say key to its success is its highly engaging and hyper-personalized video-ranking algorithm.

The algorithm, which involves millions of lines of software code developed by thousands of engineers over many years, cannot be easily transferred to the U.S., even if China did allow it, TikTok's challenge states.

Lawyers for TikTok argue that "any severance [of the algorithm] would leave TikTok without access to the recommendation engine that has created a unique style and community that cannot be replicated on any other platform today."

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A Plan to Remake the Middle East

While talks for a cease-fire between israel and hamas continue, another set of negotiations is happening behind the scenes..

This transcript was created using speech recognition software. While it has been reviewed by human transcribers, it may contain errors. Please review the episode audio before quoting from this transcript and email [email protected] with any questions.

From New York Times, I’m Michael Barbaro. This is The Daily.

[MUSIC CONTINUES]

Today, if and when Israel and Hamas reach a deal for a ceasefire fire, the United States will immediately turn to a different set of negotiations over a grand diplomatic bargain that it believes could rebuild Gaza and remake the Middle East. My colleague Michael Crowley has been reporting on that plan and explains why those involved in it believe they have so little time left to get it done.

It’s Wednesday, May 8.

Michael, I want to start with what feels like a pretty dizzying set of developments in this conflict over the past few days. Just walk us through them?

Well, over the weekend, there was an intense round of negotiations in an effort, backed by the United States, to reach a ceasefire in the Gaza war.

The latest ceasefire proposal would reportedly see as many as 33 Israeli hostages released in exchange for potentially hundreds of Palestinian prisoners.

US officials were very eager to get this deal.

Pressure for a ceasefire has been building ahead of a threatened Israeli assault on Rafah.

Because Israel has been threatening a military offensive in the Southern Palestinian city of Rafah, where a huge number of people are crowded.

Fleeing the violence to the North. And now they’re packed into Rafah. Exposed and vulnerable, they need to be protected.

And the US says it would be a humanitarian catastrophe on top of the emergency that’s already underway.

Breaking news this hour — very important breaking news. An official Hamas source has told The BBC that it does accept a proposal for a ceasefire deal in Gaza.

And for a few hours on Monday, it looked like there might have been a major breakthrough when Hamas put out a statement saying that it had accepted a negotiating proposal.

Israeli Prime Minister Benjamin Netanyahu says the ceasefire proposal does not meet his country’s requirements. But Netanyahu says he will send a delegation of mediators to continue those talks. Now, the terms —

But those hopes were dashed pretty quickly when the Israelis took a look at what Hamas was saying and said that it was not a proposal that they had agreed to. It had been modified.

And overnight —

Israeli troops stormed into Rafah. Video showing tanks crashing over a sign at the entrance of the city.

— the Israelis launched a partial invasion of Rafah.

It says Hamas used the area to launch a deadly attack on Israeli troops over the weekend.

And they have now secured a border crossing at the Southern end of Gaza and are conducting targeted strikes. This is not yet the full scale invasion that President Biden has adamantly warned Israel against undertaking, but it is an escalation by Israel.

So while all that drama might suggest that these talks are in big trouble, these talks are very much still alive and ongoing and there is still a possibility of a ceasefire deal.

And the reason that’s so important is not just to stop the fighting in Gaza and relieve the suffering there, but a ceasefire also opens the door to a grand diplomatic bargain, one that involves Israel and its Arab neighbors and the Palestinians, and would have very far-reaching implications.

And what is that grand bargain. Describe what you’re talking about?

Well, it’s incredibly ambitious. It would reshape Israel’s relationship with its Arab neighbors, principally Saudi Arabia. But it’s important to understand that this is a vision that has actually been around since well before October 7. This was a diplomatic project that President Biden had been investing in and negotiating actually in a very real and tangible way long before the Hamas attacks and the Gaza war.

And President Biden was looking to build on something that President Trump had done, which was a series of agreements that the Trump administration struck in which Israel and some of its Arab neighbors agreed to have normal diplomatic relations for the first time.

Right, they’re called the Abraham Accords.

That’s right. And, you know, Biden doesn’t like a lot of things, most things that Trump did. But he actually likes this, because the idea is that they contribute to stability and economic integration in the Middle East, the US likes Israel having friends and likes having a tight-knit alliance against Iran.

President Biden agrees with the Saudis and with the Israelis, that Iran is really the top threat to everybody here. So, how can you build on this? How can you expand it? Well, the next and biggest step would be normalizing relations between Israel and Saudi Arabia.

And the Saudis have made clear that they want to do this and that they’re ready to do this. They weren’t ready to do it in the Trump years. But Mohammed bin Salman, the Crown Prince of Saudi Arabia, has made clear he wants to do it now.

So this kind of triangular deal began to take shape before October 7, in which the US, Israel, and Saudi Arabia would enter this three way agreement in which everyone would get something that they wanted.

And just walk through what each side gets in this pre-October 7th version of these negotiations?

So for Israel, you get normalized ties with its most important Arab neighbor and really the country that sets the tone for the whole Muslim world, which is Saudi Arabia of course. It makes Israel feel safer and more secure. Again, it helps to build this alliance against Iran, which Israel considers its greatest threat, and it comes with benefits like economic ties and travel and tourism. And Prime Minister Benjamin Netanyahu has been very open, at least before October 7th, that this was his highest diplomatic and foreign policy priority.

For the Saudis, the rationale is similar when it comes to Israel. They think that it will bring stability. They like having a more explicitly close ally against Iran. There are economic and cultural benefits. Saudi Arabia is opening itself up in general, encouraging more tourism.

But I think that what’s most important to the Crown Prince, Mohammed bin Salman, is what he can get from the United States. And what he has been asking for are a couple of essential things. One is a security agreement whose details have always been a little bit vague, but I think essentially come down to reliable arms supplies from the United States that are not going to be cut off or paused on a whim, as he felt happened when President Biden stopped arms deliveries in 2021 because of how Saudi was conducting its war in Yemen. The Saudis were furious about that.

Saudi Arabia also wants to start a domestic nuclear power program. They are planning for a very long-term future, possibly a post-oil future. And they need help getting a nuclear program off the ground.

And they want that from the US?

And they want that from the US.

Now, those are big asks from the us. But from the perspective of President Biden, there are some really enticing things about this possible agreement. One is that it will hopefully produce more stability in the region. Again, the US likes having a tight-knit alliance against Iran.

The US also wants to have a strong relationship with Saudi Arabia. You know, despite the anger at Mohammed bin Salman over the murder of the Saudi dissident Jamal Khashoggi, the Biden administration recognizes that given the Saudis control over global oil production and their strategic importance in the Middle East, they need to have a good relationship with them. And the administration has been worried about the influence of China in the region and with the Saudis in particular.

So this is an opportunity for the US to draw the Saudis closer. Whatever our moral qualms might be about bin Salman and the Saudi government, this is an opportunity to bring the Saudis closer, which is something the Biden administration sees as a strategic benefit.

All three of these countries — big, disparate countries that normally don’t see eye-to-eye, this was a win-win-win on a military, economic, and strategic front.

That’s right. But there was one important actor in the region that did not see itself as winning, and that was the Palestinians.

[MUSIC PLAYING]

First, it’s important to understand that the Palestinians have always expected that the Arab countries in the Middle East would insist that Israel recognize a Palestinian state before those countries were willing to essentially make total peace and have normal relations with Israel.

So when the Abraham Accords happened in the Trump administration, the Palestinians felt like they’d been thrown under the bus because the Abraham Accords gave them virtually nothing. But the Palestinians did still hold out hope that Saudi Arabia would be their savior. And for years, Saudi Arabia has said that Israel must give the Palestinians a state if there’s going to be a normal relationship between Israel and Saudi Arabia.

Now the Palestinians see the Saudis in discussions with the US and Israel about a normalization agreement, and there appears to be very little on offer for the Palestinians. And they are feeling like they’re going to be left out in the cold here.

Right. And in the minds of the Palestinians, having already been essentially sold out by all their other Arab neighbors, the prospect that Saudi Arabia, of all countries, the most important Muslim Arab country in the region, would sell them out, had to be extremely painful.

It was a nightmare scenario for them. And in the minds of many analysts and US officials, this was a factor, one of many, in Hamas’s decision to stage the October 7th attacks.

Hamas, like other Palestinian leaders, was seeing the prospect that the Middle East was moving on and essentially, in their view, giving up on the Palestinian cause, and that Israel would be able to have friendly, normal relations with Arab countries around the region, and that it could continue with hardline policies toward the Palestinians and a refusal, as Prime Minister Benjamin Netanyahu has said publicly, to accept a Palestinian state.

Right. So Michael, once Hamas carries out the October 7th attacks in an effort to destroy a status quo that it thinks is leaving them less and less relevant, more and more hopeless, including potentially this prospect that Saudi Arabia is going to normalize relations with Israel, what happens to these pre-October 7th negotiations between the US, Saudi Arabia, and Israel?

Well, I think there was a snap assumption that these talks were dead and buried. That they couldn’t possibly survive a cataclysm like this.

But then something surprising happened. It became clear that all the parties were still determined to pull-off the normalization.

And most surprisingly of all, perhaps, was the continued eagerness of Saudi Arabia, which publicly was professing outrage over the Israeli response to the Hamas attacks, but privately was still very much engaged in these conversations and trying to move them forward.

And in fact, what has happened is that the scope of this effort has grown substantially. October 7th didn’t kill these talks. It actually made them bigger, more complicated, and some people would argue, more important than ever.

We’ll be right back.

Michael, walk us through what exactly happens to these three-way negotiations after October 7th that ends up making them, as you just said, more complicated and more important than ever?

Well, it’s more important than ever because of the incredible need in Gaza. And it’s going to take a deal like this and the approval of Saudi Arabia to unlock the kind of massive reconstruction project required to essentially rebuild Gaza from the rubble. Saudi Arabia and its Arab friends are also going to be instrumental in figuring out how Gaza is governed, and they might even provide troops to help secure it. None of those things are going to happen without a deal like this.

Fascinating.

But this is all much more complicated now because the price for a deal like this has gone up.

And by price, you mean?

What Israel would have to give up. [MUSIC PLAYING]

From Saudi Arabia’s perspective, you have an Arab population that is furious at Israel. It now feels like a really hard time to do a normalization deal with the Israelis. It was never going to be easy, but this is about as bad a time to do it as there has been in a generation at least. And I think that President Biden and the people around him understand that the status quo between Israel and the Palestinians is intolerable and it is going to lead to chaos and violence indefinitely.

So now you have two of the three parties to this agreement, the Saudis and the Americans, basically asking a new price after October 7th, and saying to the Israelis, if we’re going to do this deal, it has to not only do something for the Palestinians, it has to do something really big. You have to commit to the creation of a Palestinian state. Now, I’ll be specific and say that what you hear the Secretary of State, Antony Blinken, say is that the agreement has to include an irreversible time-bound path to a Palestinian state.

We don’t know exactly what that looks like, but it’s some kind of a firm commitment, the likes of which the world and certainly the Israelis have not made before.

Something that was very much not present in the pre-October 7th vision of this negotiation. So much so that, as we just talked about, the Palestinians were left feeling completely out in the cold and furious at it.

That’s right. There was no sign that people were thinking that ambitiously about the Palestinians in this deal before October 7th. And the Palestinians certainly felt like they weren’t going to get much out of it. And that has completely changed now.

So, Michael, once this big new dimension after October 7th, which is the insistence by Saudi Arabia and the US that there be a Palestinian state or a path to a Palestinian state, what is the reaction specifically from Israel, which is, of course, the third major party to this entire conversation?

Well, Israel, or at least its political leadership, hates it. You know, this is just an extremely tough sell in Israel. It would have been a tough sell before October 7th. It’s even harder now.

Prime Minister Benjamin Netanyahu is completely unrepentantly open in saying that there’s not going to be a Palestinian state on his watch. He won’t accept it. He says that it’s a strategic risk to his country. He says that it would, in effect, reward Hamas.

His argument is that terrorism has forced a conversation about statehood onto the table that wasn’t there before October 7th. Sure, it’s always in the background. It’s a perennial issue in global affairs, but it was not something certainly that the US and Israel’s Arab neighbors were actively pushing. Netanyahu also has — you know, he governs with the support of very right-wing members of a political coalition that he has cobbled together. And that coalition is quite likely to fall apart if he does embrace a Palestinian state or a path to a Palestinian state.

Now, he might be able to cobble together some sort of alternative, but it creates a political crisis for him.

And finally, you know, I think in any conversation about Israel, it’s worth bearing in mind something you hear from senior US officials these days, which is that although there is often finger pointing at Netanyahu and a desire to blame Netanyahu as this obstructionist who won’t agree to deals, what they say is Netanyahu is largely reflecting his population and the political establishment of his country, not just the right-wingers in his coalition who are clearly extremist.

But actually the prevailing views of the Israeli public. And the Israeli public and their political leaders across the spectrum right now with few exceptions, are not interested in talking about a Palestinian state when there are still dozens and dozens of Israeli hostages in tunnels beneath Gaza.

So it very much looks like this giant agreement that once seemed doable before October 7th might be more important to everyone involved than ever, given that it’s a plan for rebuilding Gaza and potentially preventing future October 7th’s from happening, but because of this higher price that Israel would have to pay, which is the acceptance of a Palestinian state, it seems from everything you’re saying, that this is more and more out of reach than ever before and hard to imagine happening in the immediate future. So if the people negotiating it are being honest, Michael, are they ready to acknowledge that it doesn’t look like this is going to happen?

Well, not quite yet. As time goes by, they certainly say it’s getting harder and harder, but they’re still trying, and they still think there’s a chance. But both the Saudis and the Biden administration understand that there’s very little time left to do this.

Well, what do you mean there’s very little time left? It would seem like time might benefit this negotiation in that it might give Israel distance from October 7th to think potentially differently about a Palestinian state?

Potentially. But Saudi Arabia wants to get this deal done in the Biden administration because Mohammed bin Salman has concluded this has to be done under a Democratic president.

Because Democrats in Congress are going to be very reluctant to approve a security agreement between the United States and Saudi Arabia.

It’s important to understand that if there is a security agreement, that’s something Congress is going to have to approve. And you’re just not going to get enough Democrats in Congress to support a deal with Saudi Arabia, who a lot of Democrats don’t like to begin with, because they see them as human rights abusers.

But if a Democratic president is asking them to do it, they’re much more likely to go along.

Right. So Saudi Arabia fears that if Biden loses and Trump is president, that those same Democrats would balk at this deal in a way that they wouldn’t if it were being negotiated under President Biden?

Exactly. Now, from President Biden’s perspective, politically, think about a president who’s running for re-election, who is presiding right now over chaos in the Middle East, who doesn’t seem to have good answers for the Israeli-Palestinian question, this is an opportunity for President Biden to deliver what could be at least what he would present as a diplomatic masterstroke that does multiple things at once, including creating a new pathway for Israel and the Palestinians to coexist, to break through the logjam, even as he is also improving Israel’s relations with Saudi Arabia.

So Biden and the Crown Prince hope that they can somehow persuade Bibi Netanyahu that in spite of all the reasons that he thinks this is a terrible idea, that this is a bet worth taking on Israel’s and the region’s long-term security and future?

That’s right. Now, no one has explained very clearly exactly how this is going to work, and it’s probably going to require artful diplomacy, possibly even a scenario where the Israelis would agree to something that maybe means one thing to them and means something else to other people. But Biden officials refuse to say that it’s hopeless and they refuse to essentially take Netanyahu’s preliminary no’s for an answer. And they still see some way that they can thread this incredibly narrow needle.

Michael, I’m curious about a constituency that we haven’t been talking about because they’re not at the table in these discussions that we are talking about here. And that would be Hamas. How does Hamas feel about the prospect of such a deal like this ever taking shape. Do they see it as any kind of a victory and vindication for what they did on October 7th?

So it’s hard to know exactly what Hamas’s leadership is thinking. I think they can feel two things. I think they can feel on the one hand, that they have established themselves as the champions of the Palestinian people who struck a blow against Israel and against a diplomatic process that was potentially going to leave the Palestinians out in the cold.

At the same time, Hamas has no interest in the kind of two-state solution that the US is trying to promote. They think Israel should be destroyed. They think the Palestinian state should cover the entire geography of what is now Israel, and they want to lead a state like that. And that’s not something that the US, Saudi Arabia, or anyone else is going to tolerate.

So what Hamas wants is to fight, to be the leader of the Palestinian people, and to destroy Israel. And they’re not interested in any sort of a peace process or statehood process.

It seems very clear from everything you’ve said here that neither Israel nor Hamas is ready to have the conversation about a grand bargain diplomatic program. And I wonder if that inevitably has any bearing on the ceasefire negotiations that are going on right now between the two of them that are supposed to bring this conflict to some sort of an end, even if it’s just temporary?

Because if, as you said, Michael, a ceasefire opens the door to this larger diplomatic solution, and these two players don’t necessarily want that larger diplomatic solution, doesn’t that inevitably impact their enthusiasm for even reaching a ceasefire?

Well, it certainly doesn’t help. You know, this is such a hellish problem. And of course, you first have the question of whether Israel and Hamas can make a deal on these immediate issues, including the hostages, Palestinian prisoners, and what the Israeli military is going to do, how long a ceasefire might last.

But on top of that, you have these much bigger diplomatic questions that are looming over them. And it’s not clear that either side is ready to turn and face those bigger questions.

So while for the Biden administration and for Saudi Arabia, this is a way out of this crisis, these larger diplomatic solutions, it’s not clear that it’s a conversation that the two parties that are actually at war here are prepared to start having.

Well, Michael, thank you very much. We appreciate it.

On Tuesday afternoon, under intense pressure from the US, delegations from Israel and Hamas arrived in Cairo to resume negotiations over a potential ceasefire. But in a statement, Israel’s Prime Minister Benjamin Netanyahu made clear that even with the talks underway, his government would, quote, “continue to wage war against Hamas.”

Here’s what else you need to know today. In a dramatic day of testimony, Stormy Daniels offered explicit details about an alleged sexual encounter with Donald Trump that ultimately led to the hush money payment at the center of his trial. Daniels testified that Trump answered the door in pajamas, that he told her not to worry that he was married, and that he did not use a condom when they had sex.

That prompted lawyers for Trump to seek a mistrial based on what they called prejudicial testimony. But the judge in the case rejected that request. And,

We’ve seen a ferocious surge of anti-Semitism in America and around the world.

In a speech on Tuesday honoring victims of the Holocaust, President Biden condemned what he said was the alarming rise of anti-Semitism in the United States after the October 7th attacks on Israel. And he expressed worry that too many Americans were already forgetting the horrors of that attack.

The Jewish community, I want you to know I see your fear, your hurt, and your pain. Let me reassure you, as your president, you’re not alone. You belong. You always have and you always will.

Today’s episode was produced by Nina Feldman, Clare Toeniskoetter, and Rikki Novetsky. It was edited by Liz O. Baylen, contains original music by Marion Lozano, Elisheba Ittoop, and Dan Powell, and was engineered by Alyssa Moxley. Our theme music is by Jim Brunberg and Ben Landsverk of Wonderly.

That’s it for The Daily. I’m Michael Barbaro. See you tomorrow.

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May 9, 2024 • 34:42 One Strongman, One Billion Voters, and the Future of India
May 8, 2024 • 28:28 A Plan to Remake the Middle East
May 7, 2024 • 27:43 How Changing Ocean Temperatures Could Upend Life on Earth
May 6, 2024 • 29:23 R.F.K. Jr.’s Battle to Get on the Ballot
May 3, 2024 • 25:33 The Protesters and the President
May 2, 2024 • 29:13 Biden Loosens Up on Weed
May 1, 2024 • 35:16 The New Abortion Fight Before the Supreme Court
April 30, 2024 • 27:40 The Secret Push That Could Ban TikTok
April 29, 2024 • 47:53 Trump 2.0: What a Second Trump Presidency Would Bring

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If and when Israel and Hamas reach a deal for a cease-fire, the United States will immediately turn to a different set of negotiations over a grand diplomatic bargain that it believes could rebuild Gaza and remake the Middle East.

Michael Crowley, who covers the State Department and U.S. foreign policy for The Times, explains why those involved in this plan believe they have so little time left to get it done.

On today’s episode

Michael Crowley , a reporter covering the State Department and U.S. foreign policy for The New York Times.

A young man is looking out at destroyed buildings from above.

Background reading :

Talks on a cease-fire in the Gaza war are once again at an uncertain stage .

Here’s how the push for a deal between Israel and Saudi Arabia looked before Oct. 7 .

From early in the war, President Biden has said that a lasting resolution requires a “real” Palestinian state .

Here’s what Israeli officials are discussing about postwar Gaza.

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Michael Crowley covers the State Department and U.S. foreign policy for The Times. He has reported from nearly three dozen countries and often travels with the secretary of state. More about Michael Crowley

IMAGES

Right to Freedom of Speech and Expression
Right to Silence
(PDF) Right to Silence and Self Incrimination under Indian Constitution
Invoke Your Right To Silence
LAW SUMMARY The Right to Remain Silent? Refusal to Speak Falsely
The Right to Silence Essay Example

VIDEO

Scream Silence
Tom Morello Reads Banned Books
Meanwhile Remaining Right Silence FULL ALBUM
#Silence #motivation #selfcare #trending #philosophy #love
Why Silence is Power
Essayist Femi Ojumu Discusses His Collection Of Socio-Legal Essays

COMMENTS

The Right to Silence Helps the Innocent: A Response to Critics
L. REV. 430 (2000). Under Seidmann and Stein's theory, the right to silence protects innocents who find themselves unable to corroborate their self-exonerating accounts by verifiable evidence. Absent the right, guilty criminals would pool with innocents by making false self- exonerating statements.
The Right to Silence for Criminal Suspects Under the Law
The right to silence is among the Miranda rights that police must recite during or shortly after an arrest. The primary application of this right occurs during criminal court proceedings, where prosecutors are not allowed to call the defendant as a witness. The defendant has sole discretion over whether to testify at trial, and prosecutors may ...
Decline of the right to Silence
This essay will go on to assess the advantages and disadvantages of the right to silence, by analysing its use in context and by weighing the two models of criminal justice against each other. A catalyst for the erosion of the right to silence was the enactment of the Criminal Justice and Public Order Act 1994 [9] .
Strengthening the protection of the right to remain silent at the
Akin to a legal principle, the right to silence is deeply entrenched in the fabric of individual criminal justice systems. As evidenced by the country-specific articles, an assessment of whether this right is sufficiently respected requires a review of the national legal system as a whole, which goes far beyond the provisions on the right to ...
The Meaning of Silence in the Right to Remain Silent
The right to remain silent is one of the cardinal principles of criminal jurisprudence in the United States and is probably the single most widely recognized principle of criminal law among members of the general public. The adoptive admission rule can become a particularly dangerous trap for those suspected by the police of involvement in a crime.
The Right to Silence: Using American and European Law to ...
THE RIGHT TO SILENCE |529. compurgation, involving the saying of an oath, and trial by ordeal. A mistake in the saying of the oath indicated guilt, as did loss in the trial by ordeal. These practices fell into disuse, to be replaced by common law courts and ecclesiastical courts.
Right to silence
The right to silence is a legal principle which guarantees any individual the right to refuse to answer questions from law enforcement officers or court officials. It is a legal right recognized, explicitly or by convention, in many of the world's legal systems. The right covers a number of issues centered on the right of the accused or the defendant to refuse to comment or provide an answer ...
The right to silence: Inferences and interference
The right to silence, or the privilege against self-incrimination, has long been recognised as an important procedural protection for the accused in the criminal process. The legislature of New South Wales, however, has introduced legislation to curtail that right by allowing for adverse inferences to be drawn at trial from the pre-trial ...
Scholarly Commons: Northwestern Pritzker School of Law
This article examines the legal and philosophical implications of the right of silence, the presumption of innocence and the burden of proof in criminal trials.
'You do not have to say anything …': Instructing the jury on the
The right to silence is both a fundamental and a controversial element of the legal process. Suspects and defendants are reminded repeatedly of this entitlement, from the moment of arrest, where the police caution explains that 'you do not have to say anything …', to the right of defendants in criminal trials to decline to testify in their own defence. However, the decision to remain ...
The Effects of a Right to Silence
Common law criminal systems have typically given suspects in criminal trials a "right to silence": if the suspect does not answer police questions then the jury must condition its verdict on the other evidence alone, deciding as if the suspect had not in fact been interrogated. The Supreme Court decided in Miranda v.
Police Stops and Right to Silence
The purpose of this paper is to critically consider how police powers of stop, search and arrest, along with changes to the right to silence, have led to a slow erosion of the rights of the suspect. Attention is drawn to the role of police officers, their rights and powers; as well as primary legislation, important statutes, criticism against ...
Silence Matters: A survey of the right to silence in the summary
There is a scant existing literature on the relationship between the right to silence and its effect on convictions in Australia and comparable jurisdictions. ... policies, and politics of criminal law. In Zedner L, Roberts JV (eds) Principles and Values in Criminal Law and Criminal Justice: Essays in Honour of Andrew Ashworth. Oxford: Oxford ...
PDF The Right to Silence
Regarding the right to remain silence prior that makes it an offence to remain silent in common law is that the trial judge and pre-trial 46 The silence. right to silence when questioned different ways by numerous statutes. For requires drivers to produce their licence and. 47 by police. Non-compliance is an offence.
Development of the Right to Silence in International Human Rights Law
Recent decisions of the ECtHR indicate the Court's current approach: in order to guarantee the right to silence and the right against self-incrimination, access to a lawyer should be given from the first time a suspect is interrogated, as a right under art. 6 (1) and art. 6 (3) (c).
Silence, Speech, and the Paradox of the Right to Remain Silent in
Yet, despite its deep roots in American legal history and its entrenched status in current popular culture, the right to silence as articulated in Miranda has been subject to a barrage of judicial limitations, qualifications, and exceptions in recent years, to the point where it currently can scarcely be said to provide any meaningful ...
PDF Right to Silence 1. Common Law
Right to Silence 1. Common Law The evidential rule which places a burden of proof on the prosecution that they should prove the defendants guilt beyond reasonable doubt (Woolimington v DPP ( í õ ï ñ) AC ò î) - Woolimington principle) is a cornerstone of criminal law in England. Such a presumption of innocence means that
The Right to Silence in UK Law
The current law on the right to silence is an acceptable measure as it protects both the right and justice. It protects the suspects with giving a limited but still enough right and at the same still imposes its own cautions. However, small modifications might help in favour of suspects.
5. The Right to Silence and the Privilege against Self ...
Chapter 5 deals with the right to silence and the privilege against self-incrimination. It considers relevant provisions of the Criminal Justice and Public Order Act 1994. These include sections 34, 36, and 37, which permit adverse inferences to be drawn from certain failures of the defendant at the pre-trial stage. Section 34, in particular, has generated a substantial body of case law.
Criminal Trials: The Effect of Silence
Article 6 of the European Convention of Human Rights guarantees, or purports to guarantee, the right for every individual to a fair trial. Moreover, Article 6 (2) states that "everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law". It is therefore up to the prosecution to prove that the ...
Right to Silence Essay
Intro At common law, no inference was permitted from the exercise of the right to silence in the phase of questioning by the police. This right to silence, according to Ian Dennis (2007) is a derivative application of the privilege of self-incrimination (it is an evidential immunity for exercising silence).
The Truth About Morris Dees and the SPLC
When a pair of attorneys named Morris Dees and Joe Levin founded the Southern Poverty Law Center (SPLC) over 50 years ago, they did so with the stated intention of ensuring equal rights for everyone in America, particularly racial minorities. ... falsely accusing them of bigotry in an attempt to silence them. The organization accuses those who ...
Analyzing the Legal and Social Implications: a Summary of Roe V. Wade
Essay Example: The decision in Roe v. Wade, made by the United States Supreme Court in 1973, has profoundly influenced both the legal framework and societal views on abortion and reproductive rights. The ruling established a woman's right to make decisions about her own pregnancy, emphasizing
The Radical Case for Free Speech
I asked Will Creeley, the legal director of FIRE, how he would answer that question."To my mind," he wrote, in a thoughtful and lengthy e-mail, "the answer—has to be—that we're doing ...
US college protests: Biden insists "order must prevail"
President Joe Biden is defending the right to free speech but says "order must prevail" on college campuses. Biden's remarks broke days of silence as police crack down on encampments erected to show solidarity with Gaza. Photos. 6 ... By focusing on a law-and-order message while defending the right to free speech, Biden is grasping for a ...
The Right to Silence at the Police Station
The Right to Silence at the Police Station - Whether or not the defendant s silence was based on legal advice would not necessarily stop adverse inferences. ... Law Essay Writing Service; Law Dissertation Writing Service; Law Assignment Writing Service; All Law Services; Useful Resources. Law Essays; Case Summaries;
President Biden breaks silence on campus unrest: 'Violent protest is
WASHINGTON ― President Joe Biden condemned violence, destruction and antisemitism on college campuses while defending the right for pro-Palestinian protesters to peacefully demonstrate in his ...
Justice Alito Warns of Threats to Freedom of Speech and Religion
Wade and eliminated the constitutional right to abortion it had established. In his speech, Justice Alito said that respect for precedent, in law and life, was important.
TikTok challenges U.S. ban in court, calling it unconstitutional
The high-stakes legal battle could determine the future of the popular app in the U.S. TikTok's legal filing calls the ban law an unprecedented violation of First Amendment rights.
A Plan to Remake the Middle East
Right. archived recording. Breaking news this hour — very important breaking news. An official Hamas source has told The BBC that it does accept a proposal for a ceasefire deal in Gaza. michael ...