First, the government lures us in with a scheme to make our lives better, our families safer, and our communities more secure, and then once we buy into it, they slam the trap closed. Doesn't matter whether you're talking about militarized police, private prisons, red light cameras, DNA databases, surveillance cameras, or zero tolerance policies--they all result in "we the people" being turned into enemy #1.
In this way, the government campaign to spy on our phone calls, letters and emails was sold to the American people as a necessary tool in the war on terror. Instead of targeting terrorists, however, the government has turned us into potential terrorists, so that if we dare say the wrong thing in a phone call, letter, email or on the internet, especially social media, we end up investigated, charged and possibly jailed.
This criminalization of free speech, which is exactly what the government's prosecution of those who say the "wrong" thing using an electronic medium amounts to, is at the heart of Elonis v. The United States, a case before the U.S. Supreme Court this term.
If you happen to be one of the 1.31 billion individuals who use Facebook or one of the 255 million who tweet their personal and political views on Twitter, you might want to pay close attention, because the case has broad First Amendment implications for where the government can draw the line when it comes to expressive speech that is protected and permissible versus speech that could be interpreted as connoting a criminal intent.
The case arose after Anthony Elonis, an aspiring rap artist, used personal material from his life as source material and inspiration for rap lyrics which he then shared on Facebook. For instance, shortly after Elonis' wife left him and he was fired from his job, his lyrics included references to killing his ex-wife, shooting a classroom of kindergarten children, and blowing up an FBI agent who had opened an investigation into his postings. Despite the fact that Elonis routinely accompanied his Facebook posts with disclaimers that his lyrics were fictitious, he was charged with making unlawful threats and sentenced to 44 months in jail.
Elonis is not the only Facebook user to be targeted for the content of his posts. Indeed, the common thread running through the growing number of cases like Elonis is the use of social media to voice frustration, grievances, and anger, sometimes using language that is overtly violent. These cyber "public squares" may be the only forum left for citizens to freely speak their minds and exercise their First Amendment rights.
Unfortunately, the internet has become a tool for the government to monitor, control and punish the populace for behavior and speech that may be controversial but are far from criminal. Indeed, the government, a master in the art of violence, intrusion, surveillance and criminalizing harmless activities, has repeatedly attempted to clamp down on First Amendment activity on the web and in social media under the various guises of fighting terrorism, discouraging cyberbullying, and combatting violence.
We would do well to tread cautiously in how much authority we give the government to criminalize free speech activities and chill what has become a vital free speech forum. If free speech is not vigilantly protected, democracy is more likely to drift toward fear, repression, and violence. In such a scenario, we will find ourselves threatened with an even more pernicious injury than violence itself: the loss of liberty. In confronting these evils, more speech, not less, is the remedy.
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