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Written by John R. Vile, last updated on December 2, 2023

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In Feldman v. United States, 233 U.S. 486 (1944), the U.S. Supreme Court ruled that the national government could use self-incriminating evidence to convict a man of a federal offense even when the evidence had been gathered by a state who had granted the man immunity against state criminal prosecution.


The decision, authored by Justice Felix Frankfurter, distinguished that federal officials had not initiated or participated in state proceedings. 


Black’s dissent emphasizes protection of First Amendment rights

Although the decision was chiefly based on contemporary understandings of the Fifth Amendment provision against self-incrimination, which the Supreme Court had not yet applied to state proceedings, Justice Hugo Black authored a dissenting opinion, joined by Justices William O. Douglas and Wiley Rutledge, emphasizing the importance of the Bill of Rights as a whole and the manner in which provisions in the Bill of Rights protecting criminal defendants were designed to protect First Amendment rights.


Having noted that “[t]he first of the ten amendments erected a Constitutional shelter for the people’s liberties of religion, speech press, and assembly,” Justice Black observed that the exercise of such rights had proved to be “the commonest occasions for oppression and persecution.”


Such persecutions had “involved secret arrests, unlawful detentions, forced confessions, secret trials, and arbitrary punishments under oppressive laws.” 


Black identified the Fifth, Sixth, and Eighth Amendments as designed to protect individuals against “arbitrary punishments” and provide for “due process.” He further noted: “If occasionally these safeguards worked to the advantage of an ordinary criminal, that was a price they [the Framers] were willing to pay for the freedom they cherished.”


Black argues for safeguards for compelled self-incrimination

At a time when Black was arguing for including all the protections of the Bill of Rights against the states through the 14th Amendment, he observed “[i]t is impossible for me to reconcile today’s restrictive interpretation of the prohibition against compelled self-incrimination with the principle of broad construction which this Court heretofore has deemed essential to full preservation of the basic safeguards of liberty specifically enumerated in the Bill of Rights.” 


He noted that the provisions within the Bill of Rights “distinguish free from totalitarian government. Under our Constitutional system, the privileges it embodies and the rights it secures were intended to be above and beyond the power of any branch of government to mutilate or destroy.”


In Murphy v Waterfront Commission of New York Harbor, 378 US. 52 (1964), the Court overturned Feldman and other decisions that permitted a state to compel a witness to provide testimony that might incriminate that individual in federal proceedings.


This article was published May 5, 2022.  John Vile is a professor of political science and dean of the Honors College at Middle Tennessee State University. He is co-editor of the Encyclopedia of the First Amendment.


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