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You have the right to shut the fuck up. That’s not exactly how the Founders framed the Fifth Amendment to the U.S. Constitution, but it is what the Pot Brothers at Law—a pro-cannabis sibling legal team in Southern California—want you to know if you get stopped by the cops.
The brothers, Craig and Marc Wasserman, run a successful law firm representing clients in trouble for cannabis-related issues. And they’ve racked up nearly one million followers across Instagram and TikTok, plus 4.8 million views on YouTube, mainly by offering a single piece of advice: Never talk to the cops.
“You should never, ever, ever be afraid to peacefully and respectfully assert your rights. And you have the right not to discuss your day. Period,” Craig, 59, explained on a video call while occasionally puffing a joint and wearing a T-shirt with “STFU” printed across the chest. Marc, 52, was in his trademark sunglasses and sometimes took a dab or a hit from a vape pen. (Both brothers swear they don’t get high in court.)
One of the duo’s first YouTube videos, from 2019, outlines what they call “The Script.” It explains how to interact with police in just 25 words: "Why did you pull me over? I’m not discussing my day. Am I being detained or am I free to go? If detained, you say, “I invoke the Fifth [Amendment],’ and then you shut the fuck up.”
Attorneys telling their clients not to talk to the cops is nothing new, and dozens of videos with that message populate the web. But the brothers’ brand of advice has become somewhat of a meme and spawned numerous real-life media appearances, including on MTV’s “Ridiculousness” and “Tosh.0,” not to mention an upcoming docuseries. They also co-host the podcast “Cannabis Talk 101” on I Heart Radio and sell STFU-branded merch: T-shirts, hoodies, stickers, coffee cups, and phone cases with their legal advice printed on them; several hemp-derived CBD products; and even COVID-19 masks.
“Attorneys have been doing this for years: They've been doing comic books, they've been doing little videos, but they [the Pot Brothers at Law] turned it into essentially a viral PSA,” said Seattle-based attorney Aaron Pelley, who specializes in corporate marijuana matters at Cultiva Law. “Now they've got almost like a little media empire built on that very simple saying.”
But the question remains: Is shutting the fuck up in front of police actually good legal advice? And does that guidance work the same for racial minorities, who regularly face violent consequences even when they do exactly what the cops tell them?
How #STFU was born
Marc has been defending clients’ cannabis rights since California passed its medical marijuana law in 1996. In those early days, the law was often misapplied.
“I dove right into the criminal defense aspect of all of these cannabis patients who were getting reamed,” Marc said.
“We had called ourselves the Pot Brothers at Law jokingly,” Craig added.
It wasn’t until Craig’s son, Jerett Wasserman, faced a series of legal challenges with his nascent cannabis business that STFU was born. In one instance in 2008, Jerett was arrested for “suspicion of cultivation and possession of marijuana for sale,” according to the Orange County Register. The case was later dismissed.
“For years, we were telling my nephew: You shut the fuck up. You don't talk to the cops, you never consent to searches,” Marc said. Jerett wasn’t technically running his cannabis business legally, Craig explained, but he won in court “because he shut the fuck up and did not consent to a search.”
After that, Jerett encouraged his dad and uncle to get an Instagram account. And the rest is history. Since then, the Wassermans have trademarked both Shut The Fuck Up and #STFU and copyrighted “The Script.” Their own lawyer has sent cease-and-desist letters to other attorneys for copying their idea.
People are often scared to exercise their Fifth Amendment rights because of the misconception that not talking implies guilt. But police and judges generally know that even innocent people often invoke their rights as a form of protection. Still, the U.S. legal system is rife with systemic racism, so what actually plays out may be a little different than in theory.
Kamina Pinder, who teaches ethics at the Emory University School of Law in Atlanta, says that what the brothers are doing is a community service. But she said people of color do have to handle “The Script” somewhat differently, mostly in their delivery.
“I do agree with the general premise to shut the fuck up. I’ve issued that advice myself,” Pinder told VICE News. “If you are a person of color, specifically Black or Latinx, you cannot just reach into your wallet and snap out, ‘This is the only information you're going to get from me.’”
“Sudden movements or delivery or the tone and the surrounding context is much more likely to be interpreted as threatening when it is coming from someone who is Black or Latinx,” she added.
Take the case of Philando Castile, a 32-year-old Black man who was fatally shot in 2016 by a cop who pulled him over in the Minneapolis–St. Paul metropolitan area. Castille told the officer he was reaching for his wallet, but he also had a licensed gun with him, which he’d also told the police about.
Despite doing everything he was supposed to do, Castile was still shot five times by Jeronimo Yanez of the St. Anthony Police Department. He was charged, but a jury found him not guilty.
“I felt sick to my stomach because there really was nothing he [Castile] could have done differently. Nothing,” Pinder said. “He said what he was going to do, and he was still murdered.”
Between 2013 and 2018, Black men were about 2.5 times more likely to be killed by police than white men. For Black women, the rate was 1.4 times higher than white women. Another recent study found that Black civilians fatally shot by police were twice as likely as whites to have been unarmed.
“I've been pulled over just for being Black,” Pinder said. “I have to be on alert, because my skin color is a threat to some. To many, actually.”
The Pot Brothers are also operating in a market that has disproportionately criminalized Black Americans. Even today, when marijuana is legal in 17 states and 43 percent of U.S. adults now live somewhere that has legalized cannabis for recreational use, people of color are disproportionately arrested for possession. According to data from the ACLU, Black Americans are nearly 4 times more likely than white to be arrested for marijuana possession, even though usage rates of the drug are roughly the same.
Still, Pinder’s advice doesn’t differ that much from the Wassermans’.
“I wouldn't provide information beyond that of identity. Because whatever you say to them, you are wedded to that. You just married that statement,” she said.
“I'd rather err on the side of caution and have the police assume that I have something to hide than to say something that might incriminate me in the future,” she added.
Going viral for staying silent
The viral trend of sharing Fifth Amendment advice appears to have started around 2012 with a video called “Don't Talk to the Police,” which now has over 12 million views on YouTube. Professor James Duane at Regent Law School in Virginia Beach, Virginia, recorded the footage as part of a lecture he gave to a class of incoming law students, where he laid out the stakes of talking to police in no uncertain terms: “It cannot help. There is no way it can help you. Plenty of folks think that it can, and they're always wrong.”
The popularity of the video, which was originally intended only for a few students who’d missed the lecture, stunned Duane. Now his message on the Fifth Amendment has become his “life's work,” he told VICE News. “I hadn't planned it that way. But that's how it’s working out, and I'm happy to embrace this crusade.”
Duane has since toured the country and given at least 30 major talks by his count on the topic. In 2016, he wrote the book “You Have the Right to Remain Innocent,” all about talking—or not talking—to law enforcement.
“I really think it's vital … for people to understand the right to remain silent,” Duane said. “It's not something to be embarrassed of, it was not a little glitch in the Constitution. It was put there intentionally and deliberately by geniuses who understood how precious and valuable it was to all criminal suspects.”
Duane’s motivation is to not only educate folks but also end the trend of wrongful convictions, especially for minorities. The Innocence Project, a nonprofit founded in 1992 that aims to overturn the sentences of innocent defendants using DNA evidence, has exonerated almost 400 people, 60 percent of whom are Black. Out of 375 people, 44 pleaded guilty to crimes they did not commit. And according to Duane, self-incrimination can start with talking to police.
“I'd rather have my ass kicked, frankly, and not go to jail, than have my ass kicked and serve a sentence.”
“I'm fed up. I'm tired of the fact that our country's convicting so many innocent people,” Duane said. “It's distressingly easy for innocent people, even if they are telling the truth, to give the police information that can be used to convict them of a crime that they didn't commit. And I'm trying to help put a stop to that.”
While it’s illegal to lie to police, that doesn’t work both ways—they're not required to tell the truth. Cops can fabricate what evidence they have on someone and even their ability to get a search warrant in some cases.
“If they want to search you for not discussing your day, then any attorney is going to have a blast with a motion to quash whatever they find in your car, if that's the reason they use. It's not probable cause,” Craig said.
But it’s certainly possible that if you shut the fuck up when confronted by an officer, it could attract more attention. Some cops don’t like it when people flex their rights.
“So many of my clients have exercised their rights properly and ended up in a room with no cameras and get ‘tuned up’ because they're exercising their rights,” said Pelley, the Washington attorney. (By “tuned up,” Pelley means getting the shit kicked out of them.)
But for Pinder, it’s about weighing the consequences.
“You can get beaten up for speaking to the police also and not saying what they want,” she said. “I'd rather have my ass kicked, frankly, and not go to jail, than have my ass kicked and serve a sentence.”
It’s important to note that the Pot Brothers aren’t telling people to be rude to the cops. Disrespect or insolence can trigger the police. And they emphasize that you should cooperate with officers and follow their orders, such as getting out of the vehicle, without consenting to a search or incriminating yourself.
“What do you say to the cop when he pulls you over? You don't want to say, ‘I'm not talking to you. Fuck you,’” Craig said. “We came up with the most polite way to do it: ‘I'm not discussing my day.’”
If the cop keeps asking questions, you should ask if you’re being detained or free to go, Craig said. “It starts a clock ticking. They can't just keep you there until they figure out something else.”
If the police detain you, it’s important to say “I'm invoking the Fifth,” Craig added. If you just suddenly stop talking, without expressly saying, “I’m invoking the Fifth Amendment,” it can be used against you. But after that, “You shut the fuck up,” Craig said once again. “It just keeps people from talking themselves into trouble.”
Whether or not the complexities of the U.S. legal system can really be distilled down into short viral videos, the trend at least gets people to look closer at their civil rights and protect themselves against potential self-incrimination during a traffic stop.
And in the end, it might be best to err on the side of caution and just shut the fuck up.