Based on the example of Ed Rosenthal there's something about freedom of speech that's puzzling me:

According to the article and to what I've read about the case, a defendant in court has been denied the right to even say that what he did was legal under state law.

In my personal opinion this looks like an outright violation of freedom of speech, because I can't think of any reason why a defendant should be in any way restricted as to what he is allowed to say. Being allowed to say anything doesn't force anyone (judge/juror) to believe that it's true and obviously there're good reasons for example to force witnesses to only say the truth, because their freedom of speech quickly conflicts with the defendant's right for a fair trial should they be allowed to lie.

I'd like to know the explanation for this as I'm sure there is one, though it's not obvious for an "outsider" like me. Besides that, I wonder if this has ever been challenged in court.

  • "Being allowed to say anything doesn't force anyone (judge/juror) to believe that it's true", then "obviously there're good reasons for example to force witnesses to only say the truth" - don' t these two statements contradict each other?
    – komodosp
    Aug 14, 2019 at 12:13
  • 1
    @colmde I don't think so: Explicitly allowing a witness to lie conflicts with the defendant having a fair trial. Still, even a witness swears to "tell the truth" - no to "say only things of relevance". It's up to the judge to say "Listen, we don't care what your cat had for breakfast so stop wasting our time or I will waste your money!" This, of course, applies to the defendant to: "Feel free to write down a list of jurisdictions where what you did is legal and put it in the round thing in that corner, but do it after we are finished with this."
    – Thomas
    Aug 15, 2019 at 6:12

1 Answer 1


A courtroom is not a podium

A court is a forum for resolving a specific dispute. Testimony is restricted for a number of reasons the most all encompassing of which is relevance.

For testimony to be admitted it has to go to the issue in dispute. For a person charged under the laws of, say, India, it cannot be in any way relevant what the laws of, say, China have to say about the issue. Similarly, for a person charged with a Federal crime, state law is irrelevant (and vice-versa).

There is no free speech issue here because testimony is given only for the purpose of resolving the case. If it’s not relevant to that you can’t introduce it and, if you persist in trying the court can hold you in contempt.

  • That's a (surprisingly) simple yet convincing answer. It certainly feels somewhat strange from a different perspective, but it makes perfect sense once you think about it. (I suppose a prosecutor asking for an acquittal might feel equally strange from an outside perspective.) Thanks. That was very interesting. :)
    – Thomas
    Aug 13, 2019 at 11:56
  • However, a trial isn't merely about guilty-versus-innocent. Even if found guilty, the severity of the sentence might depend on lots of mitigating factors. I know that ignorance of the law is not a valid excuse, but wouldn't a sentence be harsher if a defendant knew he was breaking the law and did it deliberately, in comparison with a defendant who sincerely believed that it's allowed in his state (but was mistaken)? There are differences between malicious and negligent crimes, and the background and prior behavior of the defendant is often taken into consideration when deciding the severity.
    – vsz
    Nov 2, 2020 at 14:40
  • @vsz why do you think any of that wouldn’t be admissible? It’s certainly relevant.
    – Dale M
    Nov 2, 2020 at 21:01
  • @DaleM : you stated "for a person charged with a Federal crime, state law is irrelevant" - and I just mentioned a hypothetical example when it could be relevant.
    – vsz
    Nov 2, 2020 at 21:11

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