A Mental State Requirement for Asserting Constitutional Rights?
A few days ago I asked about the constitutional provenance of “rights not to,” and got some very thoughtful and probing comments in return. While I was trying to respond to them, it occurred to me that there might be a related issue worth exploring — namely, whether there is or should be a mental state requirement for asserting constitutional rights. If I accidentally or involuntarily speak (perhaps I have a disability that makes it difficult or impossible for me to control myself) and am prosecuted for what I say, can I claim the protection of the First Amendment? If I inadvertently engage in an illegal religious practice (maybe I didn’t know what I was doing, or didn’t know it was a religious practice), can I invoke the Free Exercise Clause? If a gun is planted on my person or property and I’m prosecuted for possessing it, can I challenge the law on Second Amendment grounds?
I imagine that most people’s instinct is to say yes to all of those hypotheticals. That may well be right, but it’s not necessarily obvious: If even an involuntary or unknowing outburst counts as “speech,” then the bounds of the First Amendment are enormously expansive, particularly if involuntary or unknowing non-speech actions count as “expressive conduct.” Maybe the answer is simply that if the government is going to prosecute you for doing something, then fair play demands that you get the same constitutional protections as anyone who does that action voluntarily (and therefore, presumably, more culpably). Or maybe the answer varies with the particular constitutional verb at issue. And even if there is a mental state requirement for asserting constitutional freedoms, the next question would be what the required mental state should be — purposeful, knowing, or what have you.
Obviously these questions are only relevant for constitutional rights that relate to actions, and since we don’t live in a world with many strict liability crimes, they aren’t going to be relevant very often — a person can presumably avoid conviction for an accidental or involuntary act by showing that she lacked the requisite mens rea. But thinking about them may help clarify (or complicate) the relationship between action, intention, and constitutional rights.