This week saw our nation's top court ratify yet another expansion of police power and attendant erosion of civil rights. The Constitution does not guarantee individuals the right to not tell a police officer their names, five out of four Supreme Court justices ruled in the Hiibel case. States may pass laws requiring such disclosure in certain circumstances, and persons refusing to cooperate can be arrested, prosecuted and jailed. There are currently 21 states with such laws on their books. The well known "right to remain silent" is not what it used to be. Ironically, informing arrestees of the right to remain silent is one of the first thing police officers making such arrests must do -- according to the longstanding Miranda Supreme Court ruling -- silence having been the justification for making the arrest in the first place notwithstanding.
The impact of the ruling is uncertain. Some civil libertarians worry it will encourage legislatures to test how they can further expand such boundaries. Others have pointed out that while the ruling is not desirable from the privacy and civil rights perspective, for the moment at least it does not create police powers that didn't exist before, but only upholds current laws in the states that have them. And the ruling was narrow: Officers must have asked for a name while conducting a criminal investigation, with reasonable suspicion that a crime may have been committed. If not, the name requirement could still turn out to be unconstitutional. At least the justices left that possibility open.
Unfortunately, the narrowness of the written word in the ruling may turn out to be much wider in practice. Suppose you are walking down the street, minding your own business, and a police officer stops you and asks you your name. How do you know whether or not the officer is conducting an investigation? I suppose you could ask, but you can't force the officer to answer. If it is an investigation, how do you know if the officer accurately assessed there to be a "reasonable suspicion" that a crime has been committed and that you might know something about it? You could simply assume that the officer's judgment is sound, and that you are for that moment a subject in an investigation, and provide the officer with your name.
But what if you're wrong -- what if it's not an investigation? The officer in that situation has no legal power to compel you to answer. But no such power is needed. All the officer needs is your uncertainty as to the nature of the situation. You might believe it's not an investigation, or that the investigation is being conducted without any reasonable suspicion to justify it. But if you are mistaken, or a judge or jury rightly or wrongly determines you to be mistaken, you could be in big trouble. So you lose a right that you legitimately have, in order to avoid or reduce the risk of incurring legal problems that you don't want.
That loss may seem "insignificant," the word used in the majority opinion to justify the name requirement in the face of the constitutional right to not incriminate oneself. But if the right exists, then significance or lack thereof in principle doesn't matter; the abrogation of a constitutionally protected right is significant in and of itself. Though the law may be that enforcers may not compel citizens to provide their names outside the context of a criminal investigation with reasonable suspicion, that law cannot be upheld. People don't like to be arrested or prosecuted or incarcerated, and they will therefore provide their names almost every time, even if they believe the situation is one in which they are not obligated to do so. And few would argue that the duress and expense of an arrest and trial are insignificant, even if the defendant ultimately prevails.
There are other troubling questions. Does this 1st and 5th amendment exception apply only to the name itself, or could it be interpreted to apply to the larger concept of identity? That is, suppose you have a common name like John Smith or Mary Jones or Henry Wu. Will the officer quiz you on details of your life in order to determine if you are the specific Smith or Jones or Wu being sought? Such a line of questioning might well be conducted for the best of motives, to avoid arresting the wrong person. But it's another Pandora's Box nonetheless. Will an individual who has already been arrested, but refuses to provide his or her name subsequently, be charged with that as a crime as well, despite having been read the "right to remain silent" Miranda rules? There are many, many police encounters in this country every day, and these situations are bound to come up somewhere, sometime.
The court's answer to Hiibel will almost certainly create more questions than answers. Unfortunately, I'm more worried about those questions' answers than this one.