In many ways the limits on commercial speech make sense, we don't want people selling snake oil claiming it is the cure for cancer. Certainly that is an extreme and doesn't suggest the same is true of good-faith product endorsement on IG without disclosure, but the same potential for abuse exists, especially on highly regulated products that have very specific advertising regulations (i.e. alcohol and tobacco) that might be advertised in good faith.
I think one of the most bizarre applications to date is the Martha Stewart case. During her insider trading case, she actually picked up new charges for securities fraud because throughout the insider trading case she continually proclaimed her innocence. Now I think if Free Speech protects anything, it should protect our ability to proclaim our innocence publicly when the government charges us with a crime; however, the new charges alleged she proclaimed her innocence with the specific intent of artificially and fraudulently propping up the stock of the Martha Stewart company. These new charges carried up to 20 years, but ultimately the prosecutors dismissed them when she was found guilty and sentenced for the insider trading charges. It would have been a very interesting case from a legal perspective.
1- If your company had an asset (Martha Stewart's brand) that you know is about to become a lot less valuable, saying "the asset will not become less valuable", when you know that to be a lie, should be considered fraud.
2- clearly, if charged with a crime, you have a right to speak out and proclaim your innocence.
Two fundamental things that are opposed to each other. Which should win out?
>you have a right to speak out and proclaim your innocence.
This isn't so clear. You have a right to not proclaim your guilt, but you exercise that right by not speaking. The right against self-incrimination does not permit lying.
The law has long recognized certain situations in which you're not allowed to lie - while making sworn testimony, while being interviewed by federal investigators, etc. People can and do go to jail for lying to the effect of "I didn't do it" even if the trial on the original charge doesn't result in a conviction.
Speaking to the public in a way that influences securities prices is another one of those situations where lying is illegal.
>You have a right to not proclaim your guilt, but you exercise that right by not speaking.
Your point is well received, and I am going to be a little pedantic only because I find the topic so interesting to flush out...
Defendants have an absolute right to plead "Not Guilty" in a court of law to charges against them (e.g. they can't remain silent as to how they plead to the charges). So let me just acknowledge I am being pedantic, because you are referencing testifying which is separate from a defendant's plea which I am referencing. But it is still an open expression of Not Guilty in the Court, but it just doesn't waive ones right to not testify or otherwise open up a defendant for cross-examination. Further, it goes without saying we don't tack on additional charges of perjury/obstruction of justice when a defendant pleads Not Guilty to a crime for which they are later found guilty.
Separately, a Defendant charged with a crime can 100% maintain their right not to testify(right against self-incrimination) with investigators and in the courts...all while simultaneously defending themselves in public without giving up those rights (though those statements could be used in the case).
I think Stewart's speech was somewhat limited more than a typical shareholder/officer/director of a company facing a criminal charge. Normally being in such a corporate capacity still wouldn't trigger securities fraud for public deceleration of innocence against criminal charges. I just think in her case, as someone else mentioned, Stewart the individual is essentially the brand/value of the company. For example, Stewart likely was shareholder/board member in a number of corporations at that time but her public comments only triggered securities charges as to the one corporation synonymous with Martha Stewart when her statements of innocence really were entirely unrelated to the company (it's not like she said don't sell stock in the Martha Stewart company because I am innocent).
Legality isn't equivalent to morality, and that principle stands whether discussing something direct like drug persecution or emergent like this particular contradiction.
If such a case were decided in a way that constrained the government, the government would simply try again later with a slightly modified argument. Eventually, they would get a judge that wrote them a justification.
Given the government's propensity to gradually erode rights in this manner, the Bill of Rights is best thought of as a bunch of unit tests to help determine whether the government is still legitimate. I personally think it jumped the shark a while ago, but it's your job to come to your own decision.
Unfortunately, precedent-based law purports that its precedents carry the status of universal truths, rather than just the somewhat arbitrary decisions they were. So after the current contradictory system has fallen apart, many of the justifications that broke it will soon find themselves adopted by its fresh replacement.
>Unfortunately, precedent-based law purports that its precedents carry the status of universal truths, rather than just the somewhat arbitrary decisions they were.
No doubt it is far from perfect in practice, but which one(s) is(are) and why?
For example, I don't know if Common Law is any better or worse in practice (not even sure how that would really be measured) than the Civil Law system, but I always thought it is a little overly ambitious to think we could codify a rule to be applied to every possible factual situation before they occur in a statute, whereas the Common Law system assumes that we can't do that, so it acknowledges there will be cases of first impression (sets of facts we haven't applied to the law before) which will create new law (precedent) to be applied to future cases with similar facts. I do know Louisiana is the only State to have a hybrid of Common/Civil Law (due to French influence), honestly I don't know a thing about it in practice, but no other State has been convinced to adopt it and they haven't been convinced to drop it either.
>So after the current contradictory system has fallen apart
Our Common Law system is based on the old English Common Law system, so it goes back to the Norman Viking Conquests (~1100). Since the start, we have obviously developed an extensive body of case law and for the most part we rarely cite the old English Common Law cases any more, but it is still a 1,000 year old legal system. It is another very interesting question, can a legal system even change from Civil Law to something else without a full change in Government? For example, could Louisiana even drop its Common Law/Civil Law hybrid and join the 49 other States, or could another State drop their Common Law system for Louisiana's hybrid, and if so what does that transition look like? Just reading your sentence, I have to say it sounds ominous, as in system fall apart doesn't mean Common Law legal system but the entire rule of law (US Government, Bill of Rights, etc...), admittedly I am reading into what you meant and maybe it would be no difficult task to just move away from Common Law and maintain continuity of everything else.
Scooter Libby is a big one in the last few years. His underlying crime was disclosing classified information, but he wasn't convicted of that - he was convicted for the story he told denying it.
Libby was not guilty of the disclosure, and the prosecutor knew it from the beginning, but kept going after him, possibly in the hope of getting some dirt on the Vice President.[1] They questioned Libby repeatedly on a subject that the prosecutor already had good information on (which vindicated Libby), until Libby said something incorrect, which contradicted a previous statement, then went after him for that. At least one of the lead witnesses has come out against the prosecution and conviction, which has been described as one of the worst cases of prosecutorial overreach in recent memory.
> At least one of the lead witnesses has come out against the prosecution and conviction, which has been described as one of the worst cases of prosecutorial overreach in recent memory.
That description has got to be one of the worst politically-motivated distortions of reality in recent memory. At worst, the Libby prosecution was one of the worst cases of prosecutorial overreach targeting a wealthy and politically-connected white male by a prosecutor of the same political party in recent memory. Without all those restrictions, its a pretty routine display of how prosecutors go after suspected participants in organized criminal activity who they believe are protecting bigger targets.
What made this especially bad was that the prosecutor knew from the start that Libby was innocent (of disclosing Plame's identity). If that had not been the case, I might agree with you that this was comparable to a prosecutor going for leverage against a low-level criminal.
One could draw a difference between lying about concrete facts, as Libby did, and merely proclaiming innocence in general. Though in some cases they may be difficult to distinguish.
If I were to question you repeatedly over a period of months about the same events (which were not particularly significant to you), I would expect some inconsistencies in your version of events, even if you were trying to be truthful.
You can just reference the Martha Stewart case from the parent.
3 of the 4 charges Martha Stewart was found guilty of were for "I didn't do it" + a conspiracy charge.
That is two counts of making false statements to a federal officer and one count of obstruction of justice.
All together she was guilty of planning to do something, lying about doing it (x2), and making it difficult to prosecute her. She wasn't found guilty of doing the actual thing (which if she had been truthful to the SEC likely would have only resulted in financial penalties).
Lying to federal law enforcement (and local law enforcement in most or all jurisdictions) is also a crime, even if you're not under oath. If the FBI knocks on your door and asks if your neighbor committed a particular crime and you say no, and then they can prove that you know he did, you can go to prison. Though I imagine that they often decide against pursuing charges in such cases.
That's why the only answer you ever give to ANY LEO is, "I don't speak to law enforcement without my attorney present." Not a routine traffic stop of course, unless you like being hassled.
If you're guilty or for some reason don't want to divulge what you know (and there are legitimate reasons for that), sure.
But most of us, the overwhelming majority of the time, want to see law enforcement succeed and have nothing to conceal. If there's a robbery next door, I'm going to very happily tell the cops absolutely everything I saw and heard.
Edit: I'm surprised that this post is unpopular. Do you really want to live in a world where people don't help law enforcement find violent criminals?
I can tell you've never experienced the "Robbery next door", because you'd have been deeply underwhelmed with the response. Certainly canvassing the neighborhood isn't a part of it! Now putting aside that fantasy, in the real world most of us encounter police in one of three broad situations:
1.) Traffic stops and accidents.
2.) "Public order" issues (protests, large events, etc)
3.) As victims or perpetrators of a violent crime.
Most of us won't be either side of the equation in #3, virtually all of us will experience #1, and a large proportion will experience #2.
It's also possible that some of us understand that while many good LEO's exist, the bad ones are too damned dangerous and protected by the silence of the good ones. There are also competence, "War on Drugs" and other issues.
edit: Also, just ask literally any attorney what you should say, including those who have nothing at all to do with criminal defense. Then ask them why they all give the same answer as my original post...
I grew up in a large urban area, Miami, and this did in fact happen a couple times. There was a crime committed in the surrounding homes and police came to our door to see if we had any information that could help them.
An attorney is going to tell you what's 100% in your legal interests, since that's their duty. There's always a chance that you say something that incriminates you or reveals that you committed some other crime or similar.
But that's not the only consideration. There's also concern for the well-being of your community, a desire to make it safe for your children, etc. Acting on those interests can supersede the tiny risk that a law abiding citizen takes when speaking to law enforcement.
I'm sure it did, for a violent crime, various drug crimes, etc that's pretty typical. For a house being robbed? A little less typical to interview more than the homeowners, unless there's a reason to suspect the involvement of a neighbor, or they had a security camera/propensity for being nosy.
Remember, the person I responded to was talking about a home robbery, and so was I. Obviously you have to use your own judgement, and if it's the local PD asking about a missing person or a domestic incident, etc, don't be a dick.
About 7 years ago I had the FBI show up at my office and ask me all sorts of weird and leading questions. Not knowing any better I answered them the best I could.
The FBI agents then told me they'd be calling the DA to press charges and have me arrested for lying to a federal agent unless I completely cooperated with them in an investigation and offered them full access to my phones, my home and all my computers.
It is very likely in your best interest to avoid speaking with law enforcement.
The problem is that a lot of people see the police not as a group that protects the people, but one that enforces the law and/or puts people in jail. With the former, you can assume the police will "do the right thing" if possible, because they want the best outcome for the people. With the later, you can assume the well-being of the average citizen is not the concern of the police.
You can probably assume that the wellbeing of people is the concern of many small-town, and generally local LEO's. Most people don't decide to be a beat cop in a suburb because of a power trip (that type dreams of a city), or to solve major crimes; they just want to help people. Unfortunately, they're not most LEO's, and they're not interacting with people where the most crimes are committed.
The problem is more to do with the "average", and the system as a whole. We have a prison industry, terrible public defense, increasingly permissive treatment of fairly shady information gathering, and increasing militarization in urban areas.
The other issue is that Officer Friendly might not shake you down, beat you up, or screw you over. He might shut up and look the other way when Officer Hairy F. Knuckle does though. Blue Wall and all. That's hard to prove or even discuss, but it's painfully real.
Nah, see your downvoters know something you don't. Your neighbor is actually in cahoots with the cops, and staged the robbery, so that you would allow the police into your home for an interview, so that they could plant evidence and arrest you. ;)
Or maybe they have a friend or relative who dated a cop, or maybe they're black in the US in general, be disturbed by the trend of violent policing and excessive imprisonment, worried by the 'blue wall of silence' and its nasty persistence, maybe they went to law school or know someone who did... Lots of reasons that aren't comedy routines to use as strawmen you know.
IANAL but it seems to me that free speech always loses to fiduciary responsibility and SEC disclosure requirements because those are all responsibilities you pick up with your own free will.
FWIW, she was convicted of obstruction of justice and lying to investigators, not insider trading, but I think that even furthers your point about derivative charges.
Yes you are right. To be more accurate, I should have said convicted of some of the charges on the underlying insider trading case not the insider trading charges (as you note, not for the actual count of insider trading itself but the accompanying charges).
I may have subconsciously done that because the counts she was convicted of blur with new charge and I wanted to distinguish the underlying case/charges with the new charge which was triggered by claiming innocence of the underlying case.
I think one of the most bizarre applications to date is the Martha Stewart case. During her insider trading case, she actually picked up new charges for securities fraud because throughout the insider trading case she continually proclaimed her innocence. Now I think if Free Speech protects anything, it should protect our ability to proclaim our innocence publicly when the government charges us with a crime; however, the new charges alleged she proclaimed her innocence with the specific intent of artificially and fraudulently propping up the stock of the Martha Stewart company. These new charges carried up to 20 years, but ultimately the prosecutors dismissed them when she was found guilty and sentenced for the insider trading charges. It would have been a very interesting case from a legal perspective.