The Fifth Amendment of the United States Constitution is

The Fifth Amendment of the United States
Constitution is read as follow “No person shall be held to answer for a
capital, or otherwise infamous crime, unless on a presentment or indictment of
a Grand Jury, except in cases arising in the land or naval forces, or in the
Militia, when in actual service in time of War or public danger; nor shall any
person be subject for the same offence to be twice put in jeopardy of life or
limb; nor shall be compelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty, or property, without due process of
law; nor shall private property be taken for public use, without just

This amendment
is unlike the First Amendment in protecting freedom of thought. While the first
gives a positive right that could be exercised, the fifth gives people a
negative one. It protects people from not declaring what they deem to be kept.
Also, its protection extends to their properties such as their libraries, cell
phones, and computers. The fifth can play the safer for your liberty and
property and in some circumstances, it may be outweighing the first amendment

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In Lenrich
Associates v Heyda2 the Supreme
Court hold that “The Supreme Court held that private owners of
shopping centers could prohibit free speech activities on their premises, in
spite of a general invitation to the public to enter for business-related
purposes, unless some additional factor was present.”3 Furthermore, Justice
McAllister depending on Lloyd Corp. v. Tanner4
indicated that, in communal places such as malls, it is not necessary that
there should be a first amendment protection for certain activities.5 

Furthermore, and in a triumph for constitutional
protection of freedom of thought in digital age. In United States v. Doe6 the court hold that

“We hold that Doe’s decryption and production
of the hard drives’ contents would trigger Fifth Amendment protection because
it would be testimonial, and that such protection would extend to the
Government’s use of the drives’ contents. The district court therefore erred in
two respects. First, it erred in concluding that Doe’s act of decryption and
production would not constitute testimony. Second, in granting Doe immunity, it
erred in limiting his immunity, under 18 U.S.C. §§ 6002 and 6003, to the
Government’s use of his act of decryption and production, but allowing the
Government derivative use of the evidence such act disclosed.”7


the Fifth Amendment has its core in protecting freedom of thought. As mentioned
even if the protection might contradict with other’s speech, but it is
important to protect individuals and their liberties and properties from
invading their privacy and that would lead to protecting their freedom of
thought. Also, it is important for making the balance between the right to
speech and the right to not to speech. Even though, in incidents protection in
the Fifth outweighs the protection in the First amendment. 

Freedom of
thought and other rights:

Freedom of
thought versus freedom of speech:

As discussed in previous chapter that freedom of speech is an external
freedom while freedom of thought is an internal one.  It is important to reflect the interaction
between those two rights, and their role in the society. freedom of thought
would not be any help with the right to speech, however, it would be of a great
advantage when different thoughts are permissible.  in United States
v. Schwimmer (1929)8 Holmes wrote that:

“if there
is any principle of the Constitution that more imperatively calls for
attachment      than any other, it is the principle of free
thought—not free thought for those who agree with us but freedom for the
thought that we hate.”


Holmes sought
that to better serve freedom of thought, it is imperative to allow others with
their different opinions even if they destructive. While this liberal view of
absolutism encourages dissenters of different opinions it has its own
issues.  Does that mean a total toleration?
How about harmful thoughts that threaten the society? Holmes adopted a doctrine
that was used by the United States Supreme Court, it is called “clear and
present danger”.9

The United
States First Amendment is well known for its protection for free speech.
However, that is not a total protection. There are regulations that the First
Amendment requires protecting speech. Regarding the scope of this research, I
will focus on these types of speech.  1) Provocative
speech, 2) sexual expression, 3) child pornography, and 4) symbolic expression
like flag burning.10 I choose those kinds of
speech because I think they are deeply related to freedom of thought. These
categories of speech are codified in the United States and are not always
protected, including the right to dissent. 


Advocating of ideas and actions is a core of freedom of thought, and
everyone has the right to use different methods to support his ideas. However,
in many situations, his method might lead to harmful actions and undesirable
results. In Brandenburg v. Ohio11 the Supreme Court
define the protection of free speech when it comes to advocating for ideas and
actions. Clarence Brandenburg, a leader in
the Ku Klux Klan, gave a speech at a Klan rally.

Because of
this speech which included remarks accusing the United States government of
suppressing the “Caucasian race” he was convicted of advocating violence under
the Ohio Criminal Syndicalism Statute. The syndicalism law made it illegal to
advocate “crime, sabotage, violence, or unlawful methods of terrorism as a
means of accomplishing industrial or political reform.” In a historical event,
the Supreme Court overruled Whitney v. California12 and issued an opinion that:

“the constitutional guarantees of
free speech and free press do not permit a State to forbid or proscribe
advocacy of the use of force or of law violation except where such advocacy is
directed to inciting or producing imminent lawless action and is likely to
incite or produce such action”13

Supreme Court considered the fact that Brandenburg’s speech was not producing

1 U.S. Cons.
Amend V

2 504 P.2d 112
(Or. 1972).

3 Id at

4 407 U.S. 55I

5 Constitutional
Law. Freedom of Speech. Owners’ Fifth Amendment Property Rights Prevent a State
Constitution from Providing Broader Free Speech Rights Than Provided by the
First Amendment. Lenrich Associates v. Heyda, 504 P. 2d 112 (Ore. 1972).
(1973). Harvard Law Review, 86(8), P 1594. 1592-1607. doi:10.2307/1340039

6 670 F.3d 1335
(11th Cir. Feb. 23, 2012)

7 Id at

8 279 U.S. 644 (1929).

9 Raymond Suttner, Freedom of
Speech, 6 S. Afr. J. on Hum. Rts.
383 (1990)


10 Werhan,
Keith. Freedom of Speech: A Reference Guide to the United States
Constitution., P 82 2005.

11 395 U.S. 444

12 274 U.S. 357 (1927).

13 395 U.S. at 447 (1969).