Perhaps the flip side of the American right of free speech is what might be called the right to keep silent. Like free expression, silence is not always protected by law. Nor should it be. It is necessary to balance the individual's reasons for not speaking out against the public need for disclosure of certain information. The burden of proof should likely be on the latter.
Silence is constitutionally guaranteed in the case of self-incrimination. The Fifth Amendment spells out that no person ''... shall be compelled in any criminal case to be a witness against himself....'' But what about testifying against somebody else? Generally, a witness with criminal evidence may be subpoenaed to tell what he knows. If he refuses, he can be cited for contempt of court and be jailed.
Suppose, however, that the information withheld does not relate to a felony? Or what if considerations of conscience or professional ethics are involved? Or suppose the testifier's life could be endangered if he or she were to come forward. Obviously, the situations are not clear cut. Several examples come to mind.
The first pertains to religious convictions. It involves a Houston couple who were recently jailed for refusing to testify against their teen-age son who is accused of murder. Bernard and Odette Port said they were bound by Jewish rabbinical law, which demands family loyalty. Does the Ports' First Amendment religious freedom protection outweigh the duty of the court to obtain necessary evidence in a criminal prosecution?
Perhaps justice is best served in this type of case by a determination of the importance of the testimony. Though a witness in a criminal proceeding usually has no inherent right to keep silent, one can ask if justice was served by prolonged incarceration of these parents? A husband and wife are not required by law to testify against each other. They can, however, be compelled to take the stand against their children. And children may be called upon to testify against parents.
Another situation that involves the right to remain silent concerns the press. Despite state shield laws that protect the news media from revealing confidential sources, reporters continue to be cited or jailed for refusing to disclose information in court.
Where a criminal proceeding is involved, two constitutional principles collide: the public's right to know vs. the right of the accused to a fair trial. The media's argument is that confidential data and sources are vital to unencumbered reporting. Revealing of sources, it is stressed, not only breaches journalistic ethics but breaks faith with readers and weakens the press's watchdog role. Prosecutors, on the other hand, often view media confidentiality as an obstruction to justice.
Solutions have differed with the jurisdiction. For example, New York's State Court of Appeals solidly backed the state's shield law by ruling recently that concern for free speech is paramount. It said that a reporter need not comply with a grand jury subpoena requiring the divulging of confidential sources.
But in another case, involving a Pulitzer Prize-winning journalist in Maryland, a compromise was struck. Threatened with imprisonment if she failed to testify before a grand jury, Loretta Tofani (who had written about homosexual assaults among jail inmates) agreed to testify only in open court - and said she would not discuss anything that might betray her sources.
In Massachusetts, a task force group has recommended a ''limited shield,'' whereby media disclosure would be mandated only when those seeking it could prove that it was vital to avoid a ''violation of constitutional rights or a miscarriage of justice'' or that ''alternative and less oppressive means of obtaining that information have been exhausted.''
Intimidation is a key reason that many who might otherwise come forward in criminal trials choose to remain silent. According to a Wall Street Journal report, prosecutors say there is increasing reluctance among witnesses nationwide to testify because of threats against them or their families.
Several states have moved toward giving witnesses better police protection and enacting tougher penalties for intimidation. But in many instances the price of breaking silence would seem to be high. And, particularly in cases involving drug trafficking and other activities of organized crime, a judge imposing sanctions for refusal to testify must carefully weigh the court's need to know against society's responsibility to protect its citizens.