Kurt X. Metzmeier
Brandeis School of Law Library Interim Director
In 1958, during the Cold War, President Dwight D. Eisenhower declared May 1 as Law Day. When it was codified into law in 1961, it was as a "rededication to the ideals of equality and justice under law" and a "cultivation of the respect for law that is so vital to the democratic way of life." 36 U.S.C. § 113. It took the Civil Rights Act of 1964 and the 1965 Voting Rights Act to begin to realize those ideals of equality and justice but the principles of Law Day have been broadly embraced by the legal community.
The day is widely used to educate the public on the institutions of constitutional democracy and to celebrate the rule of law. Thus, it is a perhaps apt time to discuss the various legal myths about the legal system that circulate on social media and in lazy stories in the media.
I do not blame the people who did not spend three years in law school for not knowing fully about the judicial system, substantive law and law-making in the United States. Civics education (as one of those topics that doesn't “show up on the test”) has been deemphasized in American education. I also understand that working people at any education level have a little bit more on their minds these days than the organization and procedures of American courts, the three branches of government and whether the First Amendment applies to Yeezy’s Instagram posts.
Nonetheless, some myths can get people in trouble and lead to unrealistic expectations. Here are a few of the myths that I think should be busted.
Criminal Law Myths …
Every law library has that one patron who calls with questions about the criminal law. I am not talking about criminal defendants or even their family members, but lonely viewers of Court TV and television shows like Law & Order or one of the varieties of CSI.
The caller assumes the criminal law is uniform and that answering their question is as easy as reading the definition of “abacus” out of a Webster’s Collegiate Dictionary. They are pained when they are told it is difficult to answer their question because each of the 50 states, District of Columbia, Puerto Rico and Virgin Islands has its own unique criminal law and procedures even for crimes like murder and manslaughter.
But the idea that there is just one law sitting in an easy to consult book with black and white (and no gray) answers is just one of the myths about criminal law. Here are some others:
Police Officers Can't Lie. In the case of Frazier v. Cupp (1969) the Supreme Court affirmed that police can use deceptive means to obtain a confession or to obtain a voluntary search of a house. No matter how friendly a police officer acts, they are not your friend. They have an important job to do, and you are merely a part of it. As any good criminal lawyer will tell you, you have a right to remain silent—use it.
An Arrest is Not Valid If the Police Don’t Read You Your Rights. While Miranda v. Arizona requires police to advise you of your right to remain silent and that you can request an attorney, the primary result of omitting that warning is that any confession made (and perhaps some evidence found because of that confession) can be excluded from trial. But there is no “get out of jail card” -- if the police have sufficient other evidence, a defendant can be tried and convicted.
You Can't Be Charged with a DUI in Your Own Driveway. It is possible in all fifty states for a person to be arrested for driving under the influence (DUI) while asleep in a car, the likelihood being greater if the person is in the driver’s seat with the keys in the ignition, and clearly intoxicated. The state has a steep burden that a good defense attorney can defeat, but if you are sleeping off the night’s binge in your car, please take the back seat.
Constitutional Right to Free Speech
Americans are supremely confident that they know their rights under the constitution, even if they can’t tell you exactly where a particular right is found. A 2006 Chicago Tribune poll in found that 21% of Americans thought the right to own pets was enshrined in the Bill of Rights and 38% thought that "taking the Fifth” was part of the First Amendment. But everyone on the Internet thinks they know everything about the Freedom of Speech …
Twitter, Facebook and that Waffle House Cook Who Told Me to Shut Up Violated My First Amendment Right to Free Speech. Nope. Courts have consistently limited free speech rights under the constitution to actions by “state actors,” government agencies, local and national. Social media apps and businesses like Waffle House have the right to set rules for the use of the products they offer.
My Boss Can’t Fire Me for What I Say on My Private TikTok. As noted, only state actors can violate the First Amendment. Private employers like Walmart, Ford and Amazon are not prevented from setting policies to restrict what employees say on social media. Moreover, Kentucky is a “hire-at-will” state. Unless an employee is protected by a provision in a union contract or personal-service contract, they can be fired for any reason that doesn’t violate the U.S. and state civil rights laws. And dialing up your Twitter beef against coworker Darlene to “11” isn't one of them.
I Was Exercising Free Expression when I Posted that Rap Video Entitled “Kill My Landlord.” While Eddie Murphy was protected by the Free Speech Clause in presenting his classic Saturday Night Live skit of that name, the fact that you referenced your landlord by name, promised to kill him unless he waived your rent and stated the time and place you would kill him if he didn’t do so, means a court might find that speech an element of a criminal offense. When a person threatens or extorts another person, the speech they use is part and parcel of a crime.
Sometimes the line between ordinary speech and criminal threat via speech is very close, like violent rhetoric against a politician or a judge. Recently, however, Congress has passed laws taking threats against federal judges much more seriously.
Hate Speech Isn’t Protected by the First Amendment. A similar distinction applies to hate speech. The state cannot criminalize hate speech purely as speech. However, when that speech is part of crimes like terroristic threatening or proves hate was the motive for a murder or other violent crime, it can be prosecuted or used as a factor to enhance a criminal sentence.
You Have the Right to an Attorney
The Constitution provides the right of a citizen to be represented by an attorney in most cases that come before American courts—but that does not mean the state will pay for it. If you are charged with a crime that could put you in jail, a public defender or appointed attorney may be provided you if you can’t afford a lawyer. But a person has no right to a government-paid attorney in civil-matters like divorce and child-custody cases, fighting eviction or in probating a will.
If a person meets certain income and other requirements, a legal services corporation like the Legal Aid Society might take the case but it is not guaranteed. Plaintiffs in personal-injury cases can secure an attorney on a contingency-fee basis, which means the client pays nothing if the case is lost but they promise a percentage (usually something from 33%-45%) if the case is settled or won.
One place where litigants don’t need an attorney is small claims court (technically the Small Claims Division of District Court). Claims involving money or personal property that total up (including interest) below $1,500 can be brought here. It is like going on Judge Judy without the camera so as she says, “bring receipts.”
Courts Are Clogged with Frivolous Lawsuits Like the Woman Who Sued McDonald’s Over Hot Coffee
The case of Liebeck v. McDonald’s Restaurants is a classic example of things not being what they seem. While press reports laughed at a woman who was surprised coffee was hot, Stella Liebeck bore the scars of burns over 6% of the more sensitive parts of her body from coffee brewed nearly 50 degrees hotter than normal coffee. And the damages the jury awarded, $640,000, hardly counted as a windfall.
Frequently examples of outrageous lawsuits one hears on the local news are merely the initial complaints filed by nonlawyer “pro se” litigants that are later dismissed without comment. These include the man who sued Anheuser-Busch because drinking Budweiser didn’t make him happy or the prisoner who sued himself for letting alcohol-abuse lead him into a life of crime. While they are certainly frivolous, judges are well equipped to dismiss them.
Constitutional Myths -- President Could Fix this
I get it. The government of the United States is complicated. We have a federal government; we have a state government. Then there's Congress and the state legislature and governors and mayors and a whole bunch of courts. “I ain't got time think about all that -- President Bush-Obama-Trump-Biden should just fix it.”
The truth is that the Constitution didn’t give the president pre-eminent powers. The Founders made Article One about the powers of Congress, which everyone in short-pants and a powdered-wig assumed would be the leading branch. The president was relegated to Article Two. The chief constitutional power of the president was to be war and diplomacy, a nod to Gen. George Washington who didn’t want foreign powers to have to deal with a gaggle of Congressional committee members. However, the founders didn’t envision much war-making since they did not want a standing army (or even a navy at first). Obviously, that changed, and the world wars of the 20th century created the aura of vast presidential power.
That doesn’t change the fact that almost every domestic power a president has derives from an act of Congress. Unfortunately, the knottiest problems of our country like immigration reform are gridlocked so the presidents do their best with executive powers but those are feeble compared to a comprehensive act of Congress.
State Law Is Not That Big of a Deal; Why Should I Care Who My State House Member Is?
A similar myth is that state law means little to the acts of Congress and the decisions of the U.S. Supreme Court. Nothing is further from the truth. Abortion law, gun control, child welfare, criminal law, K-12 education and road construction are all largely governed by the acts of the state legislature. The truth is that the average Kentuckian has far more contact with institutions created or funded by the Kentucky General Assembly than they do the federal government. Everything from deer-hunting limits to the health and safety standards of your daughter’s preferred tattoo parlor is set by state law.
So, on this Law Day, try to do what you can to spread legal truths and bust dangerous legal myths. Volunteer to talk about what you know to groups of non-lawyers. Support civic education initiatives. And when someone blames President Biden for the potholes in the roads around their neighborhood, ask them who their Metro council member and representative to the state House is, or whether they reported it to Metro Call. And if they say they don’t know, send them to the city’s Metro Council Districts page https://apps.lojic.org/metrocouncildistricts/> and the state legislature’s Find Your Legislator form https://apps.legislature.ky.gsov/findyourlegislator/findyourlegislator.html to find their local officials and report those potholes.
Legal myths are nothing but talk. Legal truths can get your streetlight fixed.
