Weaponizing the First Amendment

South Dakota has just passed a law allowingcoexist discrimination against LGBQT (gays, for short) on religious grounds, despite a series of U.S. Supreme Court decisions to the contrary, most recently Obergefell v. Hodges ( ) (legalizing gay marriage).


Expect a lot more of this: purported attempts to “protect religious freedom,” supposedly under attack (but not for Muslims, ahem) that are pretexts for legalization of discrimination. There is proposed Executive Order at this writing circulating in the White House that would essentially repeal all discrimination laws for persons, which includes, you will recall, corporations, who think their God told them to treat gays, women, Muslims, black people, commies or liberals or Jews (same difference), etc. differently and worse than conservative white Christian males of European descent, aka “real Americans.”…/leaked-draft-of-trumps-religio…/

These laws are unlikely to pass constitutional muster at present, not with the current line-up on the U.S. Supreme Court (SCOTUS) or even when Judge Gorsuch is confirmed. When Trump gets to pick the next justice after him, it’s wide open what will happen. But in the meantime these efforts will absorb a lot of time, effort, energy, and money being litigated.


For roughly the last 20 years SCOTUS has been using the First Amendment, twisting it of twisting out of all recognizable shape,  treating it as a battering ram to force through a right-wing activist agenda, roughly in the same way that SCOTUS used the Due Process clause of the 14th Amendment to promote laissez-faire economics in the period from roughly 1890 to 1936.

Constitutional scholars call the “Lochner Era,” after one such case, Lochner v. New York, 198 US 45 (1905) (striking down limitation on working hours as unconstitutional) otherwise unremarkable except for a scathing and brilliant dissent by Justice Holmes –who agreed with laissez-faire economics, but did think it was the business of the courts to write it into the U.S. Constitution.


This era ended during the Great Depression when SCOTUS, after striking down several New Deal programs on the grounds, became aware that there was a national emergency and the perceived legitimacy of the courts as obstacles to doing something about it might backfire on the courts themselves. It’s a longer story than that, but you can read about it if you like. Google “Lochner Era” and “the Switch in Time.” From the mid 1930s to the mid 1990s, more or less, the courts pretty much let Congress do whatever it wanted with social and economic legislation because, it held, Congress had power under the Constitution to regulate Commerce, and everythingf affected commerce. But when it came to legislation involving restrictions on individual rights, or oppressive to racial or national minorities, the Courts got very particular.


In 1997 SCOTUS handed down City of Boerne v. Flores, 521 U.S. 507 (1997), a seriously arcane decision, very technical, about the Religious Freedom Restoration Act introduced by Rep. Charles Schumer and Sen. Teddy Kennedy in 1993. The Court struck down part of the Act on the grounds that Congress had exceeded its constitutional powers to legislate, and in so doing, gravely restricted and imposed onerous conditions upon those powers. The masochistic or super-nerdy can read my piece on the case and its subsequent history, , but warning: it’s really technical. Well written, though.


In more familiar and accessible news, SCOTUS has used the First Amendment to strike down limits of corporate campaign contributions in Citizens United v. Federal Election Commission 558 U.S. 310 (2010) (nonprofit corporations), subsequently extended to for-profit corporations and other groups, building on an older ruling, Buckley v. Valeo, 424 US 1 (1976) (holding that money is speech). I’ve written a short accessible nontechnical article, half of which is about this. When money speaks

Corporations are persons under the 14th Amendment and therefore protected by the First Amendment, and have been for over 130 years, since Santa Clara County v. Southern Pacific Railroad Company, 118 US 394 (1886). This is a principle many people wrongly think to have been established by Citizens United. It’s much older. That’s how the Lochner Court was able to apply, or misapply, the Due Process clause to corporations over a century ago.


What this Court has been doing in the name of Freedom of Speech and Free Exercise of Religion is to extend these principles to promote a far-right agenda, attacking antidiscrimination laws and enabling multinational corporations to drown out the voices of the people by deluges of money on the pretense that their billions is just like your $25, limiting Congress’ power to legislate against things the right-wing majority of the Court doesn’t like.


If that doesn’t sound like what the Courts should be doing, it’s because it’s not. Justice Holmes had it right. He personally agreed with the policy outcomes of the Lochner Court. In his policy ideas, he was a laissez-faire conservative or what we call today a libertarian. But he thought that the judge’s job was to interpret the law. It was not make it up and impose his own policy preferences on the country. He thought it was especially not the judge’s job to do this by interpreting the Constitution in a way that requires an almost-impossible-to-get constitutional amendment or a different Court that might take many decades to come about and undo the damage.

I’m not conservative when it comes to policy, you may have noticed, but I am when it comes to what I think judges should do. If they want to make policy, they should get themselves elected to the legislature or run for executive office. When they put on the black robes, take the oath, and sit down behind the bench, what they’re supposed to do is what the law requires, no less, no more, in as minimal a way as possible, and whether or not they like the outcome. Judge Gorsuch says, “I decide cases.” If only.


It took almost 50 years to reverse the errors of the Lochner court, 58 to undo the Jim Crow segregation upheld in Plessy v. Ferguson, 163 US 537 (1896) (holding that the Equal Protection Clause of the 14th Amendment was consistent with “separate but ‘equal’ segregation, overruled by Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)); see here for the history Richard Kluger’s Simple Justice, possibly the best book ever written about American law.

The Supreme Court has weaponized the First Amendment and handed it over to the corporations and the religious right. The Christian religious right, not the Muslim right. The stakes are high. Prepare for a very long and tough battle. Contribute to the ACLU and the National Lawyer’s Guild.…/…/south-dakota-religious-freedom/

Except as Punishment for a Crime for Which One has been Duly Convicted – the Loophole in the 13th Amendment

hands on prison bars «

13th (available on Netflix) is an incredibly important and beautifully made film that situates the loophole in the 13th amendment that allows involuntary servitude for persons who have been “duly convicted of a crime” in the long history of variously successful attempts to reimpose the moral, and in many cases the practical, equivalent of slavery on African-Americans. The film features the brilliant and charismatic Michelle Alexander and the great Angela Davis, as well as anti-death penalty advocate and civil rights activist Bryan Stephenson, among others

From the Klan to Jim Crow and lynching, to the “war on drugs” and the “war on crime” (dog whistle code words for the war in Black people) the murder of black leaders like Chicago’s Fred Hampton of the Black Panthers, not to mention Martin and Malcom, and mass incarceration that has put 2.3 million people in jail,and prison, 40% of them Black men, who comprise 6.3% of the population, this country has made unremitting and fairly successful efforts to keep black people where they were before the Civil War. Young black men have a 1-in-3 likelihood of going to prison, compared to a 1-in-17 likelihood for their while counterparts. (Figures from film).

I have a client who may be risking 12 years in prison after spending 3 years in jail without a conviction because he couldn’t make bail (another racist twist to the system because black people make in average only slight more than half what white people do,, and their unemployment rates are twice the white rate, _not_ counting incarcerated persons–a point made by the movie), refused a deal I got him for _probation_ because, he says, he will just have his probation violated by an arrest for walking while black. He’d rather take his chances in a trial.

He’s not being irrational. The prosecutor from whom I got the deal,pretty much warned me point blank that that’s what would happen. And the probation violation that sends you to prison for an arrest, probable cause standard rather than beyond a reasonable doubt is a further racist ribbon in this nasty package white people and accommodating black politicians have made for their poorer black male counterparts.

Of course black people aren’t property and can’t be literally sold down the river anymore, but the 13th amendment loophole is big enough to float a steamboat through. This is a useful corrective to the worshipful treatment of the 13th amendment in Spielberg’s typical flag waving soft-focus epic on the framing and passage of that amendment.



What do you say to the police if they stop you to ask you about anything where you think it is even remotely possible you might be suspected of a crime? Invoke your right to remain silent and to see an attorney. Otherwise, Nothing.

We all know “our  rights,”  Miranda v. Arizona, 384 U.S. 436 (1966), because we all grew up watching TV.  Too few people use these rights. Instead, they talk themselves into deeper trouble.


You have a right to remain silent. Use it. Today, since Berhuis v. Thompkins, 560 U.S. 370 (2010), you have to expressly invoke your right to remain silent, stating clearly that you are not saying anything. The police are not your friends. They are not, as a group, interested in getting the bad guys. They are interested in closing a case by making an arrest.  You will do as well as anyone else. Don’t make it easier for them.

Anything you say can and will be used against you in a court of law. Believe it. Trying to talk your way out of trouble will almost always dig you deeper in. Police reports often contain many statements you didn’t make, and there is no one believable to say you didn’t make them. Why make give the police real admissions you will be stuck with? Your explanations will be transformed into incriminating statements. You will be caught in contradictions, or contradiction will appear in evidence that destroy your credibility.

The police are trained interrogators, legally allowed to lie, and skilled at getting you to say things that you will really truly wish you hadn’t said. Lawyers are trained interrogators. Only the foolhardy among us would put ourselves up against a beat cop or a detective. We can’t lie, for one thing. It’s true: we can’t. They can.

“But I’ve done nothing wrong, what do I have to hide? I’ll just explain things to them and they will let me go home.” I hear that a lot talking to people in holding cells. Just because you’ve done nothing wrong doesn’t mean you can’t be arrested. The standard is probable cause, a low standard. It’s roughly a reason that a reasonable person would have to think you had committed a crime.  Invoking your right to remain silent is not such a reason. Anything else you say might be.

Don’t say anything else apart from invoking your rights. Just about anything you say that is not a 500 candlepower assertion of your Miranda rights probably constitutes a waiver of those rights that allow the police to continue to question you. Oregon v. Bradshaw, 462 U.S. 1039 (1983). There the suspect asked, “What’s going to happen to me now?” The Supreme Court treated that as a waiver allowing continued questioning.


You have a right to an attorney. If you cannot afford one, one will be provided to you. You must assert your demand for an attorney clearly in a way that cannot be misinterpreted. Davis v. United States, 512 U.S. 454 (1994). “I’m asserting my right to remain silent and I want to speak to an attorney.” That should do it.  There is no magic formula, just as long as it crystalline. If you ask for an attorney to be present while you are detained, the police must stop questioning you until your attorney arrives. United States v. Edwards, 451 U.S. 477 (1981). If they don’t, repeat the mantra: “I’m not saying anything and I want to see a lawyer.”

If the request is not clear and unequivocal, it is ineffective. Davis v. United States, 512 U.S. 452 (1994). It is up to the police to decide whether to stop questioning you or indeed, to provide you with an attorney if you have not made it crystal clear you want a lawyer. Don’t make the police guess whether you want a lawyer and therefore must stop questioning you. Most courts have ruled they don’t have to.

If the police ask (in violation of Edwards), “What do you need a lawyer for? They only gum up the works. Just answer a few questions and then you can go,” the answer is, “I want my attorney to advise me on that point.” We do gum up the works. That’s our job. We will advise you to say nothing, in case you wanted to know.  And as with invoking your right to remain silent, invoking your right to an attorney is a good idea whether or not you think you have done anything. Don’t worry whether it might make you seem guilty. If the police didn’t think you might be guilty, they would not be detaining and questioning you.


If, like a lot of people, you do not have a regular attorney, or cannot remember his or her number, or can’t reach him or her, one will be provided for you. A public defender. It is ok to add to, “I want to see an attorney,” “Please provide me with one.” The cops ought to provide you with an attorney, that is, call the P.D., after you have demanded to see one. If they don’t, it’s safe to ask for one, if that’s all you do. You are not stuck with the P.D. or for that matter with any lawyer just because that’s the first (or next, etc.) lawyer you see. Many P.D.’s are, by the way, smart, dedicated, hard-working people every bit as good or better than almost any private attorney.


If you have a lawyer and know his or her phone number, it’s also OK to say, after you have asserted your right to see an attorney, “I want my phone call,” or “Please let me use the phone to call my lawyer,” words to that effect. Nothing more. If you reach your attorney say nothing in the presence of the cops. Not, “They busted me while I was selling drugs,” or “they caught me robbing the store.” Just, I”m in custody at ___________” or “I’ve been arrested and I’m at ____________”  (it is OK to ask the cops the address where you are detained).

It’s OK to say, if you have been arrested for selling drugs or robbery, what you have been arrested for. Don’t say that you did it, even if you did. And talk to your lawyer, P.D. or private, outside the presence of the cops during this exchange if possible. If not, say where you are, will the lawyer please come, you’ve been arrested. Leave it at that.

Eventually, the cops will want to see you with your lawyer. If your lawyer doesn’t advise you to take the fifth, to refuse to answer all questions because the answers may tend to incriminate you, get a new lawyer. And take the fifth anyway.


In short, you have two primary responses to police questioning. The first is, “I’m not saying anything.” The second is, “I want to see a lawyer.” Repeat as necessary. This is often easier to say than to do in the scary situation, inherently coercive, because that is when Miranda applies, of custodial interrogation. It’s worse if you did do something because there is an impulse to confess. So, two easy rules: Say you’re saying nothing. Say you want a lawyer. Do not deviate from these rules.

The “remedy” for a Miranda violation is suppression. The statements cannot be admitted against you in court. However, statements illegally obtained in violation of Miranda can be used to impeach you, undermine your credibility and make you look like a liar. See, e.g., Harris v. New York, 401 U.S. 222 (1971). So it’s much better if there are no statements, whether legally obtained by waiver or illegally obtained by a violation of Miranda, to incriminate or impeach you.

There are likely to be enough surprising statements in the police reports and testimony that you didn’t make and waivers or ambiguities you didn’t commit. The police are not allowed to lie about that to the court because that’s perjury, a crime, but when was the last time you heard of a cop being prosecuted for perjury? There has to be evidence, the prosecutors don’t score points with their bosses going after cops, and your word won’t do.  So don’t make it easier to put you behind bars. It’s easy enough as it is.

If this seems like a minefield, that’s why you need a lawyer.

Remember two simple easy rules, whether you didn’t do it or especially if you did. Whatever the police and prosecutors tell you, all you have to say to them is:

  1. I’m not saying anything, and
  2. I want to see a lawyer.

That is all you say.


A lot of clients in jail or on bond tell me, The cops didn’t read me my rights. Does that mean the arrest was improper?

No, it does not. As stated, the remedy for a Miranda violation is suppression of the un-Mirandized statements. It’s not that you walk.  If the cops don’t ask you any questions and don’t read you your rights, they can arrest you because they think they have probable cause (and a judge agrees at your preliminary hearing) (and they always find probable cause). If they ask you questions and don’t read you your rights, and you don’t answer the questions, the arrest is fine if there is probable cause. If they don’t ask you questions and don’t read you your rights, but you make statements anyway (it happens all the time), the arrest is fine if there is probable cause, and the statements are admissible.

Yes, the cops ought to read you your rights. That’s proper procedure. But if they don’t, and you make a statement, orally or in writing, the statement is arguably inadmissible. It’s suppressed. But you still are properly arrested if there’s probable cause and no other violation, such as an illegal search.   Make things simple. Don’t say anything except, I’m not saying anything and I want to see a lawyer.


If it’s totally clear that you are not a suspect, and you have to be completely certain that you’re not, then it is OK to talk to the police. Say, for example, you are a middle-aged white guy in a suit and tie, on foot, who is a witness to a hit-and-run committed by someone else (this happened to me), then you can feel more comfortable offering evidence to help the police do their job, catching bad guys. But you have be 100% certain that you are not a  suspect and will not become one because of anything you say. If the situation seems even potentially coercive, remember: silence is golden. Prison bars are steel.


Since we are talking about coercive situations, an important point. Illinois, like many states, has a “stop and identify” law, 725 ILCS 5/105-14. If a police officer has “reasonable suspicion,” an articulable basis, not just a hunch, but not probable cause, s/he may detain you in the vicinity and demand your name and address and an explanation of your actions. Unless you are doing something that requires identification, such as driving a car, the officer cannot demand ID, because this is the land of the free.

These encounters do not trigger Miranda unless they become coercive, so answer briefly, truthfully, and vaguely. “I’m Justin Schwartz, I live at 0001 W. Devon, Chicago, and I’m shopping/looking for a friend/out for a walk — something true, vague, and innocent. Not, “I’m looking for my drugs/guns.” Don’t say that. Not as a joke, especially not if it’s true.

Don’t lie to the cops. It’s not a crime, as lying to the Feds is a crime, see 18 U.S.C 1001 (False Statements), even when not under oath, but it’s a bad idea. The point is to defuse the situation. The encounter is supposed to brief and more or less right where you’re stopped, or Miranda is triggered. Then see the two simple rules above.


A final note. Always be polite and respectful with the police, keep your hands open and away from your body (or clearly visible), and do not make any sudden movements. The police are armed men and women with the authority to kill you with virtual impunity — unless caught on video, and then it’s too late to be any good for you anyway. Most of them won’t do it–there is a lot of paperwork involved, and most of them are reasonably decent individuals. But why take a chance? Politeness and caution never hurt anyone.