By Andrew E. Taslitz

The privilege against self-incrimination has fallen on hard times. Miranda rights shrink, as do those more traditional “core” aspects of the privilege. Partly this is due to an implicit skepticism by the courts about the value of the privilege, despite their occasional explicit words of praise for its role in our constitutional scheme. Scholars largely, though not uniformly, agree that the privilege cannot be justified as a philosophical matter, viewing it as an unfortunate burden we are stuck with because of its presence in the Constitution.

This article bucks the dominant trend by articulating a new defense of the privilege against self-incrimination, one rooted in cognitive psychology and linguistic theory. In doing so, the article tries to resurrect in a completely new form the supposedly discredited “mental privacy” justification for the privilege. Specifically, this article maintains that one of the two primary purposes of the privilege is to protect individuals against the compelled expression of their “literal voice,” by which I mean both the content of their words and the paralinguistic cues that accompany them. (The second purpose of the privilege, which is to protect the individual’s “metaphorical voice” – the voice of his counsel – I address in a companion piece). The privilege thus protects not so much the privacy of our thoughts as of our words.

Control over our words matters for two inter-related reasons: first, compelled speech alters our thoughts, feelings, and character, making us into persons other than what we might choose; second, once those words leave our mouths, they expose us to social mis-definition and mis-judgment in ways that harm our sense of individual uniqueness and violate the boundaries that define us as a person.

Part I summarizes the sorry state of the privilege today. Part II draws on recent work in cognitive psychology to explain why each human becomes unique and deeply wants to be judged as unique by others, to be known for the fullness of who we truly are. Part III first explores psychological and linguistic research on those features of language that lead listeners to make judgments about speakers’ essential character, leading to praise or condemnation, including the reasons for the frequent inaccuracy of those judgments. Next, Part III explains why similar principles hold for written and internet communications, even though they are different in important ways from the paradigm case of spoken speech. Finally, Part III explores the special dangers of mis-judgment by the criminal justice system, society’s ultimate vehicle for expressing condemnation of the person. Part IV explores empirical and philosophical work on how compelled expression actually changes our fundamental nature, while Part V, the conclusion, sums up the preceding argument.

This article does not pretend to resolve all the puzzles created by the current version of the privilege. But it does lay the foundation for doing so by defending a neglected justification for the central importance of the privilege to human flourishing, suggesting that cramped interpretations of the privilege work a grave injustice that calls for correction.

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