appeared in Libertarian
in November 1978
surely favor freedom of speech, that is, the right to speak without
being hampered by the government. But the right to speak implies
the right not to speak, the right to remain silent. Yet libertarians
have themselves been strangely silent on the many instances of compulsory
speech in our society.
The most flagrant
example of continuing compulsory speech takes place in every courtroom
in our land: the compulsory bearing of witness. Now surely each
person is the absolute owner of his or her own body; as the owner
of his own body, only the individual should decide on whether or
not to speak in any given situation, and there should be no compulsion
upon him to talk or not to talk. And yet in every court, witnesses
are dragged in by force (the subpoena power) and compelled to bear
witness for or against other people.
The Fifth Amendment,
as we all know, prohibits the government from forcing a person to
testify against himself: “nor shall any person … be compelled
in any criminal case to be a witness against himself.” Excellent.
But why should an accused criminal possess a right not also
granted to admittedly innocent persons? In short, by what right
does a government compel someone to testify against another?
Here is a flagrant invasion of liberty, a flagrant abuse against
the rights of the individual, and an initiation of force and violence
against an innocent person. Yet where are the libertarians to raise
their voices against this practice?
There is also
something peculiarly monstrous and anti-libertarian about the way
in which courts, i.e. judges, move against such “crimes” as non-testimony.
In every other criminal case, whether real or victimless, the defendant
is duly charged, indicted, and prosecuted, and is allowed to plead
his case before third parties: judges or juries who are not involved
in the dispute. Yet with the “crime” of failing to testify, all
such procedures and safeguards go by the board. The judge is
the prosecutor — charging the defendant with “contempt of court”
— and also the decider of the defendant’s guilt (in this “crime”
against himself). The judge is the plaintiff, prosecutor, judge,
and jury all wrapped into one.
What is more,
in all other cases of crime, the conviction and the sentence are
punishments after the fact, after the crime has been committed.
Someone commits a crime, and is then punished. But not so in the
case of "contempt of court." In such cases, the judge
uses the “punishment” in an attempt to compel action on the
part of the "criminal." The punishment is before the fact,
an attempt to force the defendant to do something the judge wants
him to do. And, in theory at least, the judge can keep the victim
in jail for life until he “purges himself of contempt” by
performing the required deed. He can keep the defendant in jail
until he agrees to bear witness in court, until he performs the
dramatic case involving a clash between compulsory testimony and
the First Amendment
is the predicament of New York Times reporter Myron A. Farber.
In 1976, Farber wrote a series of articles in the Times which
resurrected the mysterious multiple murders committed a decade before
in a New Jersey hospital, in which a number of patients were killed
by injections of excessive amounts of curare. As a result
of Farber’s investigations, the surgeon, Dr. Mario Jascalevich was
indicted (and later acquitted) of three of the murders.
trial, the court, at the behest of the defense, ordered Farber to
turn his notes in the investigation over to the court. Farber refused,
citing the First Amendment (which protects freedom of the press
as well as speech), and also a New Jersey “shield law” designed
to defend journalists against compulsory disclosure of their sources.
Farber added that the government must not be able to commandeer
a reporter’s notes and sources if a free press is to be maintained.
And the judiciary, he pointed out, is a branch of the government.
The court ruled,
however, that in this case the shield law and even the First Amendment
were overruled by the Sixth Amendment of the Bill of Rights, which
guarantees the accused in a criminal trial “compulsory process for
obtaining witnesses in his favor." Still Farber refused to
turn over the notes. He spent 39 days in jail before Dr. Jascalevich’s
acquittal won him his freedom. Furthermore, Farber was hit with
a $2000 fine, and the New York Times too was fined a flat
sum of $100,000 plus $5000 a day as long as Farber’s notes remained
outside the judge’s custody.
the jailing of Farber was, of course, a far more heinous injustice,
the crippling effects of the fine on the newspaper should not be
overlooked. Not every newspaper is as affluent as the New York
Times. As Ken Johnson, editor of the Grand Junction (Col.) Daily
Sentinel puts it, “there would be no recourse against such an
incredible abuse of judicial power. We would have to capitulate
to the judge’s outrageous and illegal demands, or simply say there
no longer will be a free and independent newspaper in this community."
Even a veteran
civil libertarian and First Amendment absolutist like Nat Hentoff
is nonplussed and disarmed by the Farber case. For Hentoff (and
the American Civil Liberties Union as well) feel that they have
to balance — and even override — the First Amendment by the Sixth,
so that Farber should be compelled to turn over his notes if the
defense can show relevance to the case at hand. (See Hentoff, “The
Confused Martyrdom of M.A. Farber," Inquiry (Oct. 16,
1978), pp. 5–7.)
does one do if one is a Bill of Rights absolutist — as Hentoff is
— and two amendments contradict each other, as they clearly do in
the Farber case? What does one do, in general, if one is a Constitutional
absolutist and two parts of the Constitution contradict each other,
which they do frequently? There is only one way to resolve such
contradictions (if one really wants to resolve them, rather than
waffle one’s way through arbitrary qualifiers piled on each other).
And that is to have a non-contradictory set of principles that is
held higher than any written document, even one as generally
beneficent as the Bill of Rights. Libertarians have such a set of
principles, and libertarians therefore are particularly well equipped
to point the way out of this First Amendment–Sixth Amendment
hold that it is ever and always illegitimate to use force against
a non-aggressor, against someone who has not himself used force
against someone else. That means that no one, no innocent
person, regardless of his occupation: whether he be newspaperman,
lawyer, physician, accountant, or just plain citizen, should
ever be forced to testify or turn over notes to anyone, whether
as witness against himself, or for or against anyone else. In contrast
of Rights absolutism, libertarian absolutism sheds a pure and non-contradictory
light on the issue. The Sixth Amendment must be altered to drop
the compulsory process clause. The remainder of the Sixth Amendment
provides guarantees for defendants against the government;
only this clause provides defendants with compulsory powers against
innocent people. It must be repealed.
Who then will
bear witness in court? Whoever wishes to do so, freely and voluntarily.
Conscription of witnesses is no more justified than conscription
into the armed forces or into any other service or occupation. Freedom
and individual rights must extend to all institutions and all branches
of life, even into the judiciary, the heart of State power.
N. Rothbard (1926–1995) was dean of the Austrian
School, founder of modern libertarianism, and academic
vice president of the Mises
Institute. He was also editor — with Lew Rockwell —
Rothbard-Rockwell Report, and appointed Lew as his