Right to Remain Silent Undermined by Supreme Court’s Hiibel Ruling

By The Washington Post editorial board
First published June 22, 2004

Editor’s note: This editorial preempted an op-ed we were ready to write on the June 21 Supreme Court ruling. It represents our concerns well.

“You have the right to remain silent.” At least, you did before the Supreme Court handed down a decision in the case of Hiibel v. Sixth Judicial District Court of Nevada yesterday. Now, when a police officer suspecting you of a crime stops you in the street and asks your name, you can be prosecuted for refusing to answer.

That’s what happened to Larry Dudley Hiibel, who was approached by a police officer investigating a report of an assault. Repeatedly asked to identify himself, Mr. Hiibel insisted he had done nothing wrong and refused. This was illegal under Nevada law, which requires any person stopped by the police “under circumstances which reasonably indicate that the person has committed . . . a crime” to “identify himself” if asked. But as justices have long presumed in previous cases, refusing to talk was also Mr. Hiibel’s right under the U.S. Constitution, which guarantees that a person shall not be forced to act as a witness against himself. Not anymore.

The Supreme Court, voting 5 to 4, declared that there was nothing wrong with compelling people to answer police questions if the police were merely asking their names. It was okay to demand Mr. Hiibel’s name, Justice Anthony M. Kennedy wrote for the majority, “because in this case disclosure of his name presented no reasonable danger of incrimination.” That might be true of Mr. Hiibel, but what if you’re wanted for a crime? What if your name is similar to that of a fugitive? What if your first name is Osama? Justice Kennedy doesn’t answer these questions, leaving them to future cases. But as Justice John Paul Stevens wrote in dissent, “A name can provide the key to a broad array of information about the person, particularly in the hands of a police officer with access to a range of law enforcement databases. And that information, in turn, can be tremendously useful in a criminal prosecution.”

We believe that people generally ought to cooperate with law enforcement. But we also believe that targets of law enforcement have a right not to do so. Carving out exceptions, even seemingly innocent ones, is a bad idea.

© 2004 Washington Post