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L. Neil Smith's THE LIBERTARIAN ENTERPRISE Number 266, April 11, 2004 Taxation is the Root of All Evil
Slippery Frogs and the US Supreme Court
Special to TLE It's impossible to be around any civil liberties movement for long and not hear the words "slippery slope." The phrase references the fact that, once you start down a slick hillside, it's very difficult not to slide all the rest of the way down. And that, of course, illustrates the historically proved notion that once some small infringement of a right is made, it's all that much easier to continue the process until a right is completely usurped. Another commonly used adage among those concerned for civil rights involves a frog in a pot of boiling water. The claim is that, if you put a frog in a pot of hot water, he'll immediately jump out. On the other hand, if you put a frog in a pot of cold water and then slowly heat it, he'll sit there calmly until he cooks to death. The relevant idea here is that we become so used to small infringements of our rights that, by the time we notice anything has happened, a right is already well on its way to being gone, perhaps irreversibly so. The first step down that slick hillside, or the first few degrees in increased water temperature, are often relatively harmless. It's easy to note that there's a potential to fall or to cook, but we promise that we'll be very careful and so it's okay. At least, so go some of the arguments in the case of Dudley Hiibel [www.papersplease.org/], a Nevada man whose fight against a state law was heard in the US Supreme Court on March 22. Hiibel v. Sixth Judicial District Court of Nevada hinges on whether or not an individual must provide proof of identification on request by authorities. Mr. Hiibel says that doing so is an infringement of his right to remain silent. His attorney says that such a demand also goes against his client's Fourth Amendment rights protecting him from an unwarranted search. Attorneys for the government, however, insist that providing your name to a law enforcement officer is essentially a neutral act and is not incriminating. Several participants in the Hiibel matter cite Terry v. Ohio as a relevant precedent. That's a 1968 traffic stop case where it was ruled that police could frisk someone for weapons if they thought the person they were questioning might be a danger to them. That same case, however, also resulted in a decision that specifically said the person involved could be questioned but that he wasn't required to answer those questions. It's the Nevada law that Mr. Hiibel is fighting that took the so-called "Terry Stop" further by saying you absolutely must provide your name to police if asked. One Supreme Court Justice (Ruth Bader Ginsburg) is quoted in an MSN article as wondering if there aren't "other facts about oneself...so neutral that the state might also demand them." She suggested perhaps such things as phone numbers or e-mail addresses might fit the description, illustrating in a nutshell the "slippery slope" potential inherent in the Hiibel case. But Justice Antonin Scalia said that he couldn't imagine "any responsible citizen would object to giving his name." When you get right down to it, I don't personally see any problem with giving my name to a law enforcement officer when asked, either. The problem is, instead, the probability that my name won't be enough. And if I give the name, then why would I withhold an address, a phone number, or a place of employment? Why wouldn't I be willing to give out the names of family members or tell the nice policeman where a friend lives? None of these things are necessarily bad things, nor do they imply any wrongdoing on my part. But the more information we freely give up, the more information will be demanded of us, and probably demanded at some near-future time by force of law. It will happen if we don't nip this tendency in the bud. Just a few days after the Hiibel arguments were offered in the Supreme Court, Terry v. Ohio was almost certainly the precedent in a Fifth Circuit Court decision that gives police new power in searches. The details, published by the Houston Chronicle, are those the ACLU says is "the latest rollback of safeguards to protect the people from being at the mercy of a police state." The Court ruled that, in any instance where police believe there is a potential risk, the authorities "do not need an arrest or search warrant to conduct a swift sweep of private property to ensure their safety." In other words, pretty much as they please (one inarguable point here is that the police could conceivably be at some risk any time they approach an unknown residence). In the matter of Dudley Hiibel, some believe that a decision that favors the State of Nevada could very well be the impetus needed toward the establishment of a National ID card. At the very least, our Fifth Amendment rights are seriously threatened (our Fourth Amendment rights are all but gone already). Seeing how the Terry v. Ohio case has evolved, there's little doubt that those people could be right. Our best hope to avoid such a fate via the inevitable slippery slope is that the Supreme Court rule in Mr. Hiibel's favor on either of the valid Fourth or Fifth Amendment grounds cited by his attorneys. Immediately before his Supreme Court hearing, Dudley Hiibel told me that he's optimistic. While I wish him the best — and certainly hope for the best for the sake of all of us! — I'm not so sure everything will turn out in favor of the Constitution in the end. I don't know about the rest of you, but I'm personally feeling mighty warm.
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