As I discussed yesterday, one of the great constitutional rights we wall share is the right to remain silent. It is not a passive right, but a right that must be actively engaged. There is another aspect of the right that we should consider.
He has the right to remain silent. He lacks the wisdom to do so.
If I were a serial twitter from Maryland who just claimed I was going to file harassment charges against a blogger in Alabama in which the blogger in Alabama has accused me of the production of porn, and has further specified that the term producer in his blog post is being used as the meaning used in Part 2257 of the federal code, then I would probably remain silent about if I had actually done such a thing. As long as I remain silent, the burden of truth remains entirely on that Alabama blogger.
Of course, if I lack the wisdom to do so, then I may turn to Twitter and issue a serious of twits whereby I claim to have done exactly what the blogger from Alabama claims that I had done in his blog post. That should make my time on the stand in the Harassment criminal charge against the Alabama Blogger a very interesting time for me. Gosh, I’d be forced to admit on the stand that what he said is true, and therefore not harassment. At that point, I wonder how many Prosecutors in Alabama would be willing to move forward with the case and actually bring it to trial? Over a Class C Misdemeanor, in which the primary witness admits to doing what the primary witness called harassing communication claims that the witness did? Of course there is the additional hurdle that the Alabama Blogger was communicating about the me, and not to me, but let’s not quibble over unimportant things like the black letter of the law.
It is an interesting thought experiment, but I don’t suggest that it be put to the legal test, since it opens all sorts of nasty doors that have blowback on the serial twitter from Maryland.