1st Amendment and Free Speech/Drug Laws and Self-Incrimination
Hello. I don't know if you're the expert I should be sending this line of inquiry to, but seeing as there doesn't appear to be a dedicated 'law' section here, you seemed like the best person for the job. My question is two-fold: Can you you be prosecuted for publicly claiming to use illicit drugs or to have used them in the past? And can you be arrested for using drugs in videos posted on the internet, on Youtube for example, as seen here: https://www.youtube.com/watch?v=2O4foIyoka4 ? The impetus for the first question is seeing people like Obama publicly confirm illicit drug use in his past, and people like the stand-up comedian Doug Stanhope publicly claim to *still* use illicit drugs regularly; couldn't the police use this admission as evidence for a warrant to search their property? I've been wondering for some time what the legal ramifications--if any--are for doing so, and if they could possibly be protected under the 1st amendment in some way, though I suspect the 5th might be more relevant.
Thanks for your time.
Generally speaking, if someone admits to a crime as part of a speech, that admission is not protected. That said, such comments by themselves would probably not be sufficient evidence to convict a person. So, police probably would not pursue the matter unless there was some reason to believe they could find more evidence. Often, such comments are vague. Obama's statements that he used illegal drugs were from years ago, long after the statute of limitations has passed. There is no evidence to show he is still engaging in such activity. Also, if there are not specifics as to when and where the activity took place, it would be difficulty to prosecute.
Even where there is good specific information, police often decline to prosecute. For example, a few years ago, Olympic swimmer Michael Phelps was video taking a hit from a bong. The time and location of the illegal activity was substantiated. But because police would not prove beyond a reasonable doubt that the substance smoked was marijuana rather than tobacco or some other substance, they declined to prosecute.
Such speech could be used to begin an investigation. An admission that someone was still illegally using drugs might be sufficient for police to open and investigation. But a warrant would require specific information that there was drugs on the person or property.
So while police often opt not to pursue such investigations, such admissions are not protected.
I hope this helps!