A Mental State Requirement for Asserting Constitutional Rights?

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1 Response

  1. peter says:

    perhaps this needs to be fleshed out more fully. if you are criminally prosecuted for an inadvertent/involuntary statement, you obviously do not need first amendment protection; you simply say that a necessary element of the actus reus is lacking. ditto for criminal prosecution of the illegal religious exercise. constutional protection, in those contexts, seems irrelevant.

    the questions make more sense if we are talking about civil liability. if you involuntarily/accidentally utter words that would normally be defamatory, should the first amendment provide a shelter? maybe it depends whether it was involuntary or accidental. if it was involuntary, it is hard to see what theory of speech would help to protect the utterance. but it is a plausible thought that the right to free expression includes some limited right to make mistakes.