Civil Liberties

The Right Not To Snitch

The First Amendment protects your right to not be a rat.


In 2010, New York state prison inmate Mark Burns says he was stocking the commissary when a can of spaghetti sauce fell on his head. He says he duly reported the accident, but afterward, two guards approached him and said they'd heard he'd been assaulted by another inmate.

The guards had an offer, according to Burns: They wanted him to become an informant and provide false testimony against another guard. When he refused to play along, he was put in "involuntary protective custody." For nine months, he spent 23 out of every 24 hours locked in a cell by himself—"for his own safety." So Burns filed a federal civil rights lawsuit, claiming the guards violated his constitutional right not to snitch.

The Supreme Court has ruled on compelled speech in several landmark opinions, including West Virginia State Board of Education v. Barnette, which held that students may not be forced to salute the flag. Other cases have featured cops punished for refusing to cover up misconduct by fellow officers. But federal courts had never considered the right of inmates to refuse to become informants.

In an opinion issued this May, the 2nd Circuit Court of Appeals drew on a century of First Amendment jurisprudence to rule that the guards had engaged in unconstitutional retaliation against Burns.

"To force a person to speak, and compel participation, is a severe intrusion on the liberty and intellectual privacy of the individual," the court wrote. "Just as compelled silence will extinguish the individual's right of expression, compelled speech will vitiate the individual's decision either to express a perspective by means of silence, or to remain humbly absent from the arena."

The right to keep one's mouth shut, the decision continues, safeguards a "vitally important restraint on the government's coercive powers." The court even compared the guards' investigative methods to the hated "writs of general assistance" that British troops long ago used against American colonists.

That may sound like a resounding victory, but the ruling was actually a defeat for Burns. One sentence after declaring that he had been subjected to nine months of unconstitutional retaliation for exercising his right, the appeals court wrote that, because the right wasn't clearly established at the time, the guards who did it couldn't be sued, thanks to the doctrine of "qualified immunity."

Like so many First Amendment pioneers and jailhouse lawyers, Mark Burns carved out new protections for future inmates. Unfortunately, he will never see a cent from the officials who conspired against him under the color of law.

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  1. I don’t have the compelled words.

  2. …the appeals court wrote that, because the right wasn’t clearly established at the time, the guards who did it couldn’t be sued, thanks to the doctrine of “qualified immunity.”

    And with the court’s help, we’ll get that up to unqualified immunity!

  3. “because the right wasn’t clearly established at the time”

    How is the “right to remain silent” not already established by Miranda?

      1. The constitution provides protection against being compelled to testify against yourself, not against someone else.

    1. How is the right to not be compelled by force to provide false testimony not be clearly established? Must all these rights clearly established by law be spelled out in the prison guard’s employee handbook?

      1. That begs the question as to whether it would be false testimony, but other than through a subpoena process one cannot be compelled to provide testimony.

        1. ‘They wanted him to become an informant and provide false testimony against another guard.’

          I understand that this is an allegation, but some of us read the articles.

          1. some of us read the articles.

            Only FAGGITS N CUCKZ

      2. this is the inverse law of the idea that if its not written then its not legal.

        I saw a cop show the other day, Northwest Law, where the cop actually said it isn’t written as legal therefore its illegal.

        both assumptions are incorrect of course

    2. Jails are a 9A free zone.

      1. That was my thought. The 9A spells out that pur rights ARE NOT SPELLED OUT. How the holy hell do such ignoramuses become judges?

      2. That was my thought. The 9A spells out that pur rights ARE NOT SPELLED OUT. How the holy hell do such ignoramuses become judges?

        1. What do you call an attorney with an IQ of 80?

          “Your honor.”

  4. Addiction is a symptom of PTSD. Look it up.

    Making war on the afflicted is not a moral policy.

  5. It was clearly an abuse of judicial power.

    How could a judge be so wrong? I won’t assume ignorance.

    Why do cops always lie for each other under oath? Probably for the same reason judges rule in favour of the guards.

    1. Never rat on your friends, and always keep your mouth shut. No, wait… that’s the mob. Well, same difference.

      1. What do you think happened to all those mob goons, when the Asian, South American and Mexican cartels took over the drug trade?

        They joined the police force.

    2. What do you expect, they’re all on the same team.

  6. This is just crazy! Next thing you know, we will be allowed to encrypt our phones and keep the password secret!

  7. This–

    They wanted him to become an informant and provide false testimony against another guard.

    Is not ‘snitching’.

    It’s lying.

  8. It’s just so fucking stupid. The guards committed a criminal law violation by torturing someone who wouldn’t participate in their conspiracy. Everyone is on notice not to violate the law. This qualified impunity shit is tyranny in the best case scenario. It literally reaches back to the time of Kings and uses their sick twisted practices to place govt criminals outside the law. But here in this case it’s misused because it’s not about his right to refuse to be an informant. He was being forced to join criminal conspiracy. The court is ignoring reality and pretending like the inmate was merely being asked to be an informant. No dumb as shit judges the guy was asked to be a fucking criminal.

    1. The big problem is that unwritten exception to the law against suborning perjury that our courts have granted the “authorities”. I don’t know if there is sufficient evidence to prove that the guards were trying to force this man to lie, but there is abundant evidence that they applied pressure that would cause many men in his position to lie.

  9. By the time these cases come to light and there is actual evidence of Constitutional violations, these types of problems are already systemic to that institution.

    Granting qualified immunity just emboldens future crimes and violations of civil rights, since guards know exactly what they can get away with.

  10. I don’t think I’ve heard qualified immunity used in a single case I’d support. Ever.

    1. This. It’s always bullshit.

    2. It’s the “principal” that people who are paid by the government to uphold the law don’t need to know it, but “ignorance is no excuse” for the rest of us. It is in effect the unconstitutional creation of an order of nobility.

    3. It’s long past time not just for Qualified Immunity to be revisited, but to be eliminated outright.

      All QI does is protect government officials from suffering the consequences of their actions, even when an idiot (or a federal judge, but I repeat myself) can see what they did was both wrong and unconstitutional.

  11. It is long past time to end the failed experiment that is qualified immunity.

    1. +googleplex

  12. You can’t have a police state unless you have informants.
    Protecting the rights of a person not to snitch on his fellow slaves makes for a dangerous precedent that cannot be allowed in any socialist slave state.
    Without information, the police can arrest and detain anyone they want.
    Oh, wait…

  13. “a vessel for seagoin’ snitches”

    As if justice has anything to do with politics. The plastic playhouse and time we spend with our children in the backyard is power. Moms meatloaf has power. Every time we do something despite government is liberty.

  14. Clearly this ruling is not the Intent of Congress. Why else but to manufacture Gestapo stoolies was a dozen marijuana seeds a five-year felony in the sixties, and a couple of ounces of marijuana roots under the lawn grounds for asset-forfeiture confiscation of your partly-paid-for home today?

  15. How big a promotion did the guards get?

  16. So here’s a better scenario to test the theory:

    Let us say an inmate is known to have seen another inmate commit murder. He is a prisoner, and subject to punishment for bad behavior… If he refuses to rat, should be not be able to be punished for “not doing the right thing?”

    I can understand why somebody wouldn’t want to rat… They might get retaliated against. But suppose they’re just doing it out of spite for the system, or because they didn’t like the guy who got murdered, or they’re friends with the murderer, etc. Why should they not be able to punish the guy for this “bad” behavior?

    Out in regular life, they can do a lot of stuff to compel people to rat. There are limits, but they have many tools at their disposal. I don’t see why prisoners shouldn’t be able to have some pressure applied in legitimate cases.

    If they were torturing him trying to get him to lie, that’s a separate issue entirely. Obviously that is unacceptable. But if it is a legitimate violation of the law, and they refuse to cooperate, it seems more muddy. Honestly, I think it’s one of those things that just needs some common sense applied, as it’s grey zone, and would change from situation to situation.

    1. I’m no lawyer, but if the inmate were a witness to murder, I think they could use the subpoena process to compel him to testify. In this case, they’re demanding he become an informant, which is a different situation.

      1. Well, in this case he is a witness to lesser crimes… Crimes they’re too lazy to do a full on prosecution of… But if they did, they should be able to force him to testify.

  17. Fuck qualified immunity.

  18. People have a right not to incriminate THEMSELVES, not others.

    1. That would seem to apply to situations in which one is already required to speak, such as testifying in court. As far as I know, there is no broad legal requirement to volunteer information about criminal activities of others, let alone lying on behalf of the authorities about the criminal activity of others. Where there is not a law compelling one to speak, the First Amendment grants you the right not to speak. Where there is a law, it can be challenged, and either overturned or upheld, on constitutional grounds. Voloch just did a good piece on this.

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