Prosecutors attack our 1st amendment rights in court?

Let’s say you happen to defend yourself. You comply with the police don’t say anything incriminating, never made a statement. The day of trial has came, and because the prosecution wasn’t able to get anything out of you and can’t comment on you using your 5th amendment right, they can now go on your social media and use your 1st amendment right against you. Everything you post, everything you share, posts that you gave likes too, and posts that you reply too.

I know here in the USCCA they say don’t post anything online that will get you in any trouble. But what about my rights?

In court I would argue what does my online persona has to do with this case specifically? If it’s not related to this case at all then you’re violating my first amendment rights.
I post a lot on tik tok and any prosecutor can take my tik toks put things out of context and misconstrue them to make me look guilty. Even some of the USCCA videos, I can tell the court I was trained by the USCCA. All they have to do is take this specific USCCA video take it out of context and play the words, “Put a bullet or 2 in the central nervous system, either the brain or the spine, shut him off like a switch. If you can’t do that put as many holes as you can into the chest cavity, let the lungs fill up with blood, stop the heart and stop the threat” and then all the prosecuting attorney has to say is I’m listening to people that are telling me how to specifically kill somebody. That when I shot that person, I meant to shut him off like a switch, and I meant to fill his lungs with blood.

I made it a rule if I defend myself that I won’t be posting on social media for a while, and won’t post or talk about the case until after it’s over.
Why don’t we talk about how to combat this in court instead of just letting the prosecution take something irrelevant and run with it?

I’d also like to add as a 2nd amendment advocate, I also say things like the 2nd amendment was there to fight a tyrannical government. If our government went after us we’d have the means to put them in check. A prosecutor can misconstrue that into so you’re an insurgent and want to take over the government?


seems with tik tok, you’ll have your choice of tyrannical governments to fight. Not posting “for a while” doesn’t eliminate your history of posts either. That’s one of the reasons I post my target shooting pix, and preach the joy of the sport, rather than the “bad guy” targets and the incessant self defense aspect of this realm. FWIW, I quit FB 6 years ago, yet got third party emails 3 years later showing my “most liked” and busiest posts. I’m sure tiktok is at least as invasive.

1 Like

I can’t be arrested for posting on tik tok because China said so

Not true, at least in the case I was on the jury for a couple of weeks ago. One of the witness to the shooting, the shooters buddy, didn’t talk to the cops. The prosecutor asked him “Did you give the police a statement that night or at anytime after the fact?”. He answered “No”. The prosecutor asked “Why not?”. He answered “Because I’m a minority.”. Only then did the judge step in and say to the prosecutor “You are getting very close to the line…”. So in this case the prosecutor planted his use of the 5th firmly in the muddle of the testimony.

Which rights would that be, exactly?

Your right to express yourself (i.e. “no law…abridging the freedom of speech”) does not provide you any right to be free of responsibility for — or consequence from — your expressions.

Whether your speech or other behavior prior to an incident bringing you to court is relevant or admissible would be a matter for your representative to argue and the judge to rule. In court, you would probably be advised by counsel to “keep your Fifth Amendment shut”, and allow your advocate to argue the points of law on your behalf.

The 5A prohibition against compulsion to witness against yourself protects you from actions of the court and agents of the court (i.e. cops). What you say and do uncoerced — before, during, or after an incident — is not compelled self-incriminating testimony, it is evidence.

Yup, evidence. At least potentially. And taking down posts, deleting e-mail, etc is potentially evidence tampering. The only way to avoid having to answer for behavior is to not behave. A competent attorney protects you from ludicrous prosecutorial games — I believe that is 4A and 6A, not 1A or 5A.

Are you sure?
Depends who’s ear China finds to complain about you.
They don’t have to get you arrested either, just sick the doxx-and-cancel hounds at you. That is why libel cases against the biggest hounds in MSM are so important. With the precedent, one can go after much smaller, but no less malicious actors.


So if I defend myself and I tell the prosecution that I was trained by the USCCA and they play this video exactly at 1:07 How to Stop the Threat: Into the Fray Episode 22 - YouTube

How would a judge and jury view the statements he made?

Again, I suggest that you don’t “tell the prosecution” anything, except as advised by your hopefully competent counsel. Remember that more than you and the DA are involved in your hypothetical case. I will not be your attorney, but it seems like the “hazard” at 1:07 of #22 is almost trivial to refute.

If that context-free snippet is thrown at you by a prosecutor, your defense gets to respond after. I think response might start with 0:30 of the same training video, with the words: “Stop the Threat”. Then I might have your jury watch the entire training segment to understand the context of 1:07. Then I might have Michalowski explain why his training includes the language at 1:07. Then I might run through all of the USCCA training videos you have seen, until all the jurors are chanting “responsibly armed American” under their breath. Then the prosecutor might wish they had chosen to argue merits of whatever case they might have. I am not concerned that I might need to answer for being trained and competent.

I would worry much more if I were a person who needed to get out of the way of my own back trail full of bluster which does not sound trained, competent, or responsible.

1 Like

Prosecutor’s are not attacking or violating your First Amendment rights when they use what a person has said or expressed publicly, or even privately, to any other person. With few exceptions where a legal privilege exists, any statement uttered or expressed can be used against you in court. Prosecutors can force witnesses to these expressions to testify against you in court to things you have said or done in their presence. This been true since our Constitution was ratified. The reality today is that a large share of what a person expresses is saved electronically on cellphones and/or social media.
In Kentucky, the only privileges protected are attorney/client, husband/wife, Religious, Counselor/client, and Psychotherapist/patient.