John W. Whitehead, Constitutional Attorney

“There were relatively few secret police, and most were just processing the information coming in. I had found a shocking fact. It wasn’t the secret police who were doing this wide-scale surveillance and hiding on every street corner. It was the ordinary German people who were informing on their neighbors.”—Professor Robert Gellately

If you see something suspicious, says the Department of Homeland Security, say something about it to the police, call it in to a government hotline, or report it using a convenient app on your smart phone.

(If you’re a whistleblower wanting to snitch on government wrongdoing, however, forget about it—the government doesn’t take kindly to having its dirty deeds publicized and, God forbid, being made to account for them.)

For more than a decade now, the DHS has plastered its “See Something, Say Something” campaign on the walls of metro stations, on billboards, on coffee cup sleeves, at the Super Bowl, even on television monitors in the Statue of Liberty. Now colleges, universities and even football teams and sporting arenas are lining up for grants to participate in the program.

Photo credit: Tony Fischer/flickr

This DHS slogan is nothing more than the government’s way of indoctrinating “we the people” into the mindset that we’re an extension of the government and, as such, have a patriotic duty to be suspicious of, spy on, and turn in our fellow citizens.

This is what is commonly referred to as community policing. Yet while community policing and federal programs such as “See Something, Say Something” are sold to the public as patriotic attempts to be on guard against those who would harm us, they are little more than totalitarian tactics dressed up and repackaged for a more modern audience as well-intentioned appeals to law and order and security.

The police state could not ask for a better citizenry than one that carries out its own policing.

After all, the police can’t be everywhere. So how do you police a nation when your population outnumbers your army of soldiers? How do you carry out surveillance on a nation when there aren’t enough cameras, let alone viewers, to monitor every square inch of the country 24/7? How do you not only track but analyze the transactions, interactions and movements of every person within the United States?

The answer is simpler than it seems: You persuade the citizenry to be your eyes and ears. You hype them up on color-coded “Terror alerts,” keep them in the dark about the distinctions between actual threats and staged “training” drills so that all crises seem real, desensitize them to the sight of militarized police walking their streets, acclimatize them to being surveilled “for their own good,” and then indoctrinate them into thinking that they are the only ones who can save the nation from another 9/11.

As historian Robert Gellately points out, a Nazi order requires at least some willing collaborators to succeed. In other words, this is how you turn a people into extensions of the omniscient, omnipotent, omnipresent police state, and in the process turn a citizenry against each other.

It’s a brilliant ploy, with the added bonus that while the citizenry remains focused on and distrustful of each other and shadowy forces from outside the country, they’re incapable of focusing on more definable threats that fall closer to home—namely, the government and its cabal of Constitution-destroying agencies and corporate partners.

Community policing did not come about as a feel-good, empowering response to individuals trying to “take back” their communities from crime syndicates and drug lords. Rather, “Community-Oriented Policing” or COPs (short for Community Partnerships, Organizational Transformation, and Problem Solving) is a Department of Justice program designed to foster partnerships between police agencies and members of the community. (Remember, this is the same Justice Department which, in conjunction with the DHS, has been providing funding and equipping local police agencies across the country with surveillance devices and military gear. These same local police have been carrying out upwards of 80,000 SWAT team raids a year on individuals, some of whom are guilty of nothing more than growing tomatoes, and breeding orchids without the proper paperwork.)

Mind you, this is a far cry from community engagement, which is what I grew up with as a kid. Then as now, there were always neighbors watching what you bought, what you said, what you did, who you did it with, etc. My own mother proudly peered out our living room window with a pair of military-issue binoculars to keep an eye on the goings on in the neighborhood. The difference was that if there was a problem, it was dealt with as a community. When my neighbor spied me running through his flower garden, he didn’t call the cops—he called my mother. When I sassed the manager of the general store, he didn’t turn me in to the cops—he reported it to my mother. Likewise, when my next-door neighbor (who happened to be the police chief) caught me in the act of egging cars one Halloween, he didn’t haul me down to the precinct—“I’m taking you to a far worse place,” he said, “your Dad.”

So, if there’s nothing wrong with community engagement, if the police can’t be everywhere at once, if surveillance cameras do little to actually prevent crime, and if we need to “take back our communities” from the crime syndicates and drug lords, then what’s wrong with community policing and “See Something, Say Something”?

What’s wrong is that these programs are not, in fact, making America any safer. Instead, they’re turning us into a legalistic, intolerant, squealing, bystander nation content to report a so-called violation to the cops and then turn a blind eye to the ensuing tragedies.

Apart from the sheer idiocy of arresting people for such harmless “crimes” as raising pet chickens, letting their kids walk to the park alone, peeling the bark off a tree, holding prayer meetings in their backyard and living off the grid, there’s also the unfortunate fact that once the police are called in, with their ramped up protocols, battlefield mindset, militarized weapons, uniforms and equipment, and war zone tactics, it’s a process that is near impossible to turn back and one that too often ends in tragedy for all those involved.

For instance, when a neighbor repeatedly called the police to report that 5-year-old Phoenix Turnbull was keeping a pet red hen (nickname: Carson Petey) in violation of an Atwater, Minnesota, city ordinance against backyard chickens, the police chief got involved. In an effort to appease the complaining neighbor and “protect a nearby elementary school from a chicken on the loose,” the police chief walked onto the Turnbull’s property, decapitated the hen with a shovel, deposited the severed head on the family’s front stoop, and left a neighborhood child to report the news that “the cops killed your chicken!”

Now things could have been worse. The police chief could have opted to do a SWAT-team style raid on the Turnbulls’ chicken coop, as other police departments have taken to raiding goat cheese farmers, etc. The Turnbulls could also have been made to serve jail time or pay a hefty fine for violating an established ordinance. In fact, this happens routinely to individuals who grow vegetable gardens and install solar panels in violation of city ordinances.

At a minimum, the Atwater city council needs to revisit its ban on backyard chickens, especially at a time when increasing numbers of Americans are attempting, for economic or health reasons, to grow or raise their own organic food, and the police chief needs to scale back on his aggression towards our feathered friends. But what about the complaining neighbor?

It’s fine to be shocked by the convergence of militarized police in Ferguson, Mo., it’s appropriate to be outraged by the SWAT team raid that left a Georgia toddler in the ICU, and it’s fitting to take umbrage with the inane laws that result in parents being arrested for leaving their 10-year-old kids in air conditioned cars while they run into a store, but where’s the indignation over the police state’s partners-in crime—the neighbors, the clerks, the utility workers—who turn in their fellow citizens for little more than having unsightly lawns and voicing controversial ideas?

In much the same way the old African proverb “it takes a village to raise a child” was used to make the case for an all-encompassing government program of social welfare, the DHS and the DOJ are attempting to make the case that it takes a nation to catch a terrorist.

To this end, the Justice Department identifies five distinct “partners” in the community policing scheme: law enforcement and other government agencies, community members and groups, nonprofits, churches and service providers, private businesses and the media.

Together, these groups are supposed to “identify” community concerns, “engage” the community in achieving specific goals, serve as “powerful” partners with the government, and add their “considerable resources” to the government’s already massive arsenal of technology and intelligence. The mainstream media’s role, long recognized as being a mouthpiece for the government, is formally recognized as “publicizing” services from government or community agencies or new laws or codes that will be enforced, as well as shaping public perceptions of the police, crime problems, and fear of crime.

Amazingly, the Justice Department guidelines sound as if they were taken from a Nazi guide on how to rule a nation. “Germans not only watched out for ‘crimes’ and other deviations” of fellow German citizens, Gellately writes, “but they watched each other.”

Should you find yourself suddenly unnerved at the prospect of being spied on by your neighbors, your actions scrutinized, your statements dissected, and your motives second-guessed, not to worry: as I point out in my book A Government of Wolves, this is par for the course in the American police state.

SAN FRANCISCO, Calif. — A federal appeals court has refused to reconsider its ruling that it is unsafe to display an American flag in an American public school, for fear of causing offense and disruption. The denial of a petition for rehearing by the U.S. Court of Appeals for the Ninth Circuit came in response to a case being handled by Rutherford Institute attorneys in which school officials ordered several students to cover up their patriotic apparel emblazoned with American flags or be sent home on the Mexican holiday Cinco de Mayo, allegedly out of a concern that it might offend Hispanic students. Three of the nine judges on the Ninth Circuit agreed with The Institute that school officials violated long-standing Supreme Court precedent forbidding suppression of protected expression on the basis of a “heckler’s veto,” which occurs when the government restricts an individual’s right to free speech in order to maintain order.

“There are all kinds of labels being put on so-called ‘unacceptable’ speech today, from calling it politically incorrect and hate speech to offensive and dangerous speech, but the real message being conveyed is that Americans don’t have a right to express themselves if what they are saying is unpopular or in any way controversial,” said John W. Whitehead, president of The Rutherford Institute and author of A Government of Wolves: The Emerging American Police State. “Whether it’s through the use of so-called ‘free speech zones,’ the requirement of speech permits, or the policing of online forums, what we’re seeing is the caging of free speech and the asphyxiation of the First Amendment.”

On May 5, 2010, three Live Oak High School students wore patriotic t-shirts, shorts and shoes to school bearing various images of the U.S. flag. During a mid-morning “brunch break,” the students were approached by Assistant Principal Miguel Rodriguez, who told the students they could not wear their pro-U.S.A. shirts and gave them the option of either removing their shirts or turning them inside out. When the students refused because the options would be disrespectful to the flag, Rodriguez ordered them to his office. After two of the students’ parents arrived at the school, Rodriguez is alleged to have lectured the group about Cinco de Mayo, indicating that he had received complaints from some Hispanic students about the stars and stripes apparel, and again ordered that the clothing be covered up to prevent offending the Hispanic students on “their” day. Principal Nick Boden also met with the parents and students and affirmed Rodriguez’s order, allegedly because he did not want to offend students who were celebrating Cinco de Mayo.

Arguing that the decision by school officials constituted viewpoint discrimination against pro-U.S.A. expression, Rutherford Institute attorneys filed suit on behalf of the students and their parents seeking a declaration that the action violated the First Amendment and injunctive relief against a vague school district policy allowing prior restraints on speech to be imposed upon students. The lawsuit asserted that school officials violated the students’ rights to Free Speech under the First Amendment, and their Due Process and Equal Protection rights under the Fourteenth Amendment. In November 2011, the district court ruled in favor of school officials, citing a concern for school safety. That ruling was affirmed by the Ninth Circuit Court of Appeals in February 2014. Although the appeals court acknowledged that other students were permitted to wear Mexican flag colors and symbols, it ruled that school officials could forbid the American flag apparel out of concerns that it would cause disruption, even though no disruption had occurred. Affiliate attorney William J. Becker, Jr. is assisting The Rutherford Institute in its defense of the students.

CASE HISTORY

03/13/2014 • Rutherford Institute Asks Ninth Circuit to Reconsider Its Ruling Declaring It Unsafe for California Students to Wear American Flag T-Shirts to School

LEGAL ACTION

Click here to read The Ninth Circuit’s order in Dariano v. Morgan Hill Unif. Sch. Dist. Click here to read The Rutherford Institute’s petition for rehearing in Dariano et al. v. Morgan Hill Unif. Sch. Dist. Click here to read the opinion of the U.S. Court of Appeals for the Ninth Circuit in Dariano et al. v. Morgan Hill Unif. Sch. Dist.

PORT ST. LUCIE, Fla. —Florida officials have agreed not to pursue the prosecution of a Florida mother who was arrested and charged with child neglect for allowing her 7-year-old son to visit a neighborhood playground located a half mile from their house. In doing so, the state has effectively put an end to the criminal case against Nicole Gainey. Attorneys for The Rutherford Institute, along with Miami-based criminal defense lawyer Brian H. Bieber, a partner at GrayRobinson, P.A., worked with state prosecutors to achieve a mutually agreeable resolution of the matter that resulted in the charges against Gainey being dropped. In addition to being charged with a third-degree criminal felony charge that carries with it a fine of up to $5,000 and 5 years in jail, Gainey was interrogated, arrested and handcuffed in front of her son, and transported to the local jail where she was physically searched, fingerprinted, photographed and held for seven hours.

“What this incident shows is that keeping young people safe and a parent’s ability to know what’s appropriate for their children are not mutually exclusive goals,” said John W. Whitehead, president of The Rutherford Institute and author of A Government of Wolves: The Emerging American Police State. “All is not lost as long as there are government officials willing to work through issues in a reasonable manner, exhibiting compassion and common sense and recognizing that there are better ways to deal with concerns about child safety than criminalizing parents. When all is said and done, however, what we really need is for the government to stop acting as if it can do a better job of managing our lives than we can, and that holds true whether you’re talking about child rearing, health care or the surveillance state.”

Nicole Gainey, a resident of Port St. Lucie, Fla., was arrested on Saturday, July 26, 2014, after allowing her 7-year-old son Dominic to walk by himself from their house to a popular neighborhood playground located a half mile away. According to Gainey, Dominic normally rides his bike (which was out of commission that day due to a flat tire) to Sportsmans’ Park, which is located along the same stretch of road as a fire station, community pool, library, church and a daycare. Dominic also rides his bike along that same route when going to school, which is two miles away, without anyone raising any concerns. As usual, Dominic carried a cell phone with him in order to check in with his mom. According to the 7-year-old, someone asked him where his mom was when he was walking past the pool. Police officers were called, went to the park, questioned Dominic, and then drove him home in their car, without alerting his mother that there was a concern or that they had picked up her son. Upon arriving at Gainey’s home, officers questioned the single mother about her son’s whereabouts, without informing her that they had picked him up. The police then arrested Gainey, charged her with neglect, and took her to the local jail, where she was physically searched, fingerprinted, photographed and held for seven hours and then forced to pay almost $4000 in bond in order to return to her family. Gainey’s son was allowed to stay with her boyfriend in lieu of going to foster care.

In coming to Gainey’s defense, Rutherford Institute attorneys argued that parents have every right to make their own determinations about when their children are mature enough and responsible enough to be permitted to safely play outside by themselves, wait in the car by themselves or walk to a neighborhood park unsupervised. Affiliate attorneys Brian H. Bieber of GrayRobinson, P.A., and Robert A. McGlynn, Jr., P.A. assisted The Rutherford Institute in its defense of Gainey.

“In the age of advanced technology, spiritual devastation is more likely to come from an enemy with a smiling face than from one whose countenance exudes suspicion and hate. In the Huxleyan prophecy, Big Brother does not watch us, by his choice. We watch him, by ours. There is no need for wardens or gates or Ministries of Truth. When a population becomes distracted by trivia, when cultural life is redefined as a perpetual round of entertainments, when serious public conversation becomes a form of baby talk, when, in short, a people become an audience and their public business a vaudeville act, then a nation finds itself at risk: culture-death is a clear possibility.”—Author Neil Postman

Caught up in the uproar over this year’s latest hullabaloo—militarized police in Ferguson, tanks on Main Street and ISIS—Americans (never very good when it comes to long-term memory, anyhow) have not only largely forgotten last year’s hullabaloo over the NSA and government surveillance but are generally foggy about everything that has happened in between.

Then again, so much has happened in the year since Edward Snowden first appeared on the national scene that it’s understandable if the average American has a hard time keeping up with and remembering all of the “events,” manufactured or otherwise, which occur like clockwork and keep us distracted, deluded, amused, and insulated from the reality of the American police state.

This is not to say that many of these events are not critical or important. However, when we’re being bombarded with wall-to-wall news coverage and news cycles that change every few days, it’s difficult to stay focused on one thing—namely, holding the government accountable to abiding by the rule of law—and the powers-that-be understand this.

In fact, Professor Jacques Ellul studied this phenomenon of overwhelming news, short memories and the use of propaganda to advance hidden agendas. “One thought drives away another; old facts are chased by new ones,” wrote Ellul.

“Under these conditions there can be no thought. And, in fact, modern man does not think about current problems; he feels them. He reacts, but he does not understand them any more than he takes responsibility for them. He is even less capable of spotting any inconsistency between successive facts; man’s capacity to forget is unlimited. This is one of the most important and useful points for the propagandists, who can always be sure that a particular propaganda theme, statement, or event will be forgotten within a few weeks.”

Consider if you will the regularly scheduled trivia and/or distractions that have kept us tuned into the various breaking news headlines and entertainment spectacles and tuned out to the government’s steady encroachments on our freedoms:

In late August / early September, we were treated to Justin Bieber’s run-in with police after a bout of reckless driving, the FBI’s investigation into the leaking of celebrities’ nude photos, Brad and Angelina’s wedding, James Foley’s carefully staged beheading, Robin Williams’ unfortunate suicide, the riots in Ferguson over the police shooting of an unarmed black man, growing threats from ISIS, and the ALS ice bucket challenge sensation.

That was preceded by reports of immigrant children flooding over the border, Israel and Hamas’ on-again, off-again fighting, Germany’s victory in the World Cup, Ebola breakouts in West Africa, the Malaysian Airlines passenger jet crash in Ukraine, the exchange by the U.S. of five Taliban prisoners for Sgt. Bowe Bergdahl, the growing legalization of same-sex marriage by the states, and the kidnapping of 280 Nigerian girls for use as sex slaves.

Before that, there was the shooting rampage by an Iraq war veteran at the Fort Hood Army base, the uproar over LA Clippers owner Donald Sterling’s racist remarks, the Veterans Administration’s failure to provide timely care to vets, Russia and the U.S. in a tug of war over control of Crimea, the disappearance of a Malaysia Airlines flight—this one en route to China, the 2014 Winter Olympics hosted by Russia, the Seattle Seahawks’ first ever win at the Super Bowl, Gov. Chris Christie’s role in the George Washington Bridge lane closings scandal, and the outpouring of tributes over the death of Nelson Mandela.

No less traumatic and distracting were the preceding months’ newsworthy events, which included a devastating typhoon in the Philippines, France and Germany’s displeasure over the NSA spying on its people and leaders, the U.S. government’s 16-day shutdown over Obamacare, public opposition to President Obama’s plans to take military action against Syria over its alleged use of chemical weapons, another shooting rampage—this time at the Washington Navy Yard, Russia’s granting of asylum to Edward Snowden, Bradley Manning’s announcement that he is in fact Chelsea Manning, which came a day after he was sentenced to 35 years in prison for leaking classified documents, the birth of a new prince to British royals William and Kate, George Zimmerman’s acquittal of murdering Trayvon Martin, the Supreme Court’s striking down of the Defense of Marriage Act as unconstitutional, and Edward Snowden’s leaking the first of what would turn into a more-than-yearlong series of revelations about the government’s illegal surveillance programs.

As I point out in my book A Government of Wolves: The Emerging American Police State, these sleight-of-hand distractions and diversions are how you control a population, either inadvertently or intentionally, advancing your agenda without much opposition from the citizenry. But what exactly has the government been doing while we’ve been so cooperatively fixated on whatever current sensation happens to be monopolizing the mainstream “news” shows?

If properly disclosed and consistently reported on, the sheer volume of the government’s activities, which undermine the Constitution and dance close to the edge of outright illegality, would inevitably give rise to a sea change in how business is conducted in our seats of power.

Surely Americans would be outraged over the government’s plan to turn our most casual statements into hate crimes using Truthy, a $1 million online database being created to track “misinformation” and hate speech on Twitter, as well as “detect political smears, astroturfing, misinformation, and other social pollution.” Or that the Pentagon is spending millions to find ways to put down social unrest, starting with lawful First Amendment free speech protests.

There would be no end to the uproar if Americans understood the origins of ISIS, the latest hobgoblin in the government’s war on terror, whose funding appears to track back to the CIA, which helped fund its guerilla tactics in Syria.

Parents would be livid if they had any inkling about the school-to-prison pipeline, namely, how the public schools are being transformed from institutions of learning to prison-like factories, complete with armed police and surveillance cameras, aimed at churning out compliant test-takers rather than independent-minded citizens.

Taxpayers would be up in arms over the government’s end-run tactics to avoid abiding by the rule of law, whether by outsourcing illegal surveillance activities to defense contractors or outsourcing inhumane torture to foreign countries.

And one would hope American citizens would be incensed about being treated like prisoners in an electronic concentration camp, their every movement monitored, tracked and recorded by a growing government surveillance network that runs the gamut from traffic cameras and police body cameras to facial recognition software and the armed surveillance drones that will soon blanket American skies.

Unfortunately, while much of this information can be discovered through a focused study of alternative media reports, it does require quite a bit of digging and even more determination on the part of the citizenry to take an active role in their governance—which, of course, is the key to maintaining freedom.

Professor Morris Berman suggests that the problems plaguing us as a nation—particularly as they relate to the government—have less to do with our inattention to corruption than our sanctioning, tacit or not, of such activities. “It seems to me,” writes Berman, “that the people do get the government they deserve, and even beyond that, the government who they are, so to speak. In that regard, we might consider, as an extreme version of this… that Hitler was as much an expression of the German people at that point in time as he was a departure from them.”

So where does that leave us?

As legendary television journalist Edward R. Murrow warned, “Unless we get up off our fat surpluses and recognize that television in the main is being used to distract, delude, amuse, and insulate us, then television and those who finance it, those who look at it, and those who work at it, may see a totally different picture too late.”

Filmmaker John Carpenter delivers this same warning in his film They Live, in which a deluded, blinded, indoctrinated, enslaved populace finds that the only way to break free of their oppressors is by donning a pair of special Hoffman sunglasses. Only then are they able to see clearly and distinguish between what is real and what is a carefully fabricated and expansive lie designed to keep them sated, satisfied, distracted and in the dark.

If we do not awaken to the truth and open our eyes soon, then we may well find ourselves staring at a far different, far less pleasant picture before long, and by then, it will be too late to alter our reality.

Time to don a pair of Hoffman sunglasses?

RICHMOND, Va. — Attorneys for The Rutherford Institute have filed a brief with the Fourth Circuit Court of Appeals, asking the court to reinstate a lawsuit on behalf of a decorated Marine who was arrested by a swarm of Secret Service and FBI agents and local police and forcibly detained in a psychiatric ward for a week because of controversial song lyrics and political views posted on his Facebook page. Rutherford Institute attorneys filed the lawsuit in May 2013 in the U.S. District Court for the Eastern District of Virginia challenging the government’s actions as procedurally improper, legally unjustified, and in violation of Raub’s First Amendment rights.

In February 2014, a U.S. District Court judge dismissed the lawsuit, rejecting concerns over government suppression of dissident speech as “far-fetched.” In asking the Court of Appeals to reinstate the lawsuit, Institute attorneys argue that Raub was unjustly deprived of his liberty because of a failure in the mental health system to competently evaluate Raub’s mental condition. The lawsuit also alleges that Raub’s seizure and detention were the result of a Chesterfield County mental health screener’s dislike of Raub’s “unpatriotic” views on federal government misconduct, thereby violating the ex-Marine’s First Amendment right to freedom of speech.

The Rutherford Institute’s brief in Brandon Raub v. Michael Campbell is available at www.rutherford.org.

“What may sound far-fetched to the courts is a grim reality to Americans who are daily being targeted for daring to exercise their constitutional rights to speak their minds, worship as they please, criticize the government, defend themselves and their families against over-reaching government surveillance and heavy-handed police tactics,” said John W. Whitehead, president of The Rutherford Institute and author of A Government of Wolves: The Emerging American Police State. “Ultimately, Brandon Raub’s case tests our tolerance for free speech and those dissidents who keep the First Amendment relevant, because if we cannot proclaim our feelings about the government, no matter how controversial—on our clothing, or to passersby, or to the users of the world wide web—then the First Amendment really has become an exercise in futility.”

On Aug.16, 2012, Chesterfield police, Secret Service and FBI agents arrived at Brandon Raub’s home, asking to speak with him about his Facebook posts. Like many Facebook users, Raub, a Marine who has served tours in Iraq and Afghanistan, uses his Facebook page to post song lyrics and air his political opinions. Without providing any explanation, levying any charges against Raub or reading him his rights, law enforcement officials handcuffed Raub and transported him to police headquarters, then to John Randolph Medical Center, where he was held against his will. In a hearing on Aug. 20, government officials pointed to Raub’s Facebook posts as the reason for his incarceration. A Special Justice subsequently ordered that Raub be held up to 30 more days for psychological evaluation and treatment. In coming to Raub’s aid, Rutherford Institute attorneys challenged the government’s actions as a violation of Raub’s First and Fourth Amendment rights. On Aug. 23, Circuit Court Judge Allan Sharrett ordered Raub’s immediate release, stating that the government’s case was “so devoid of any factual allegations that it could not be reasonably expected to give rise to a case or controversy.”

Attorneys Anthony Troy and Charles A. Zdebski of Eckert Seamens Cherin & Mellott, LLC, and William H. Hurd and Stephen C. Piepgrass of Troutman Sanders, LLP in Richmond are assisting The Rutherford Institute in bringing the lawsuit.

WASHINGTON, D.C. — Weighing in on a case that will significantly impact expression on Facebook, Twitter and other social networks, The Rutherford Institute has asked the U.S. Supreme Court to reverse the conviction of a Pennsylvania man who was charged with making unlawful threats (it was never proven that he intended to threaten anyone) and sentenced to 44 months in jail after he posted allusions to popular song lyrics and comedy routines on his Facebook page.

The Rutherford Institute’s amicus brief in Anthony D. Elonis v. United States of America argues that the First Amendment protects even inflammatory statements that may give offense or cause concern to others unless the statements were a credible threat to engage in violence against another and made by the defendant with the intent to cause fear in the alleged victim. The case arises out of Facebook postings made by Anthony Elonis expressing his anger about events in his life, and which were based upon rap lyrics of artists such as Eminem and a comedy sketch of the group The Whitest Kids U’ Know.

The Rutherford Institute’s amicus brief in Elonis v. United States is available at www.rutherford.org.

“Whether it’s a Marine arrested for criticizing the government on Facebook or an ex-husband jailed for expressing his frustrations through rap lyrics on Facebook, the end result is the same—the criminalization of free speech,” said John W. Whitehead, president of The Rutherford Institute and author of A Government of Wolves: The Emerging American Police State. “While social media and the Internet have become critical forums for individuals to freely share information and express their ideas, they have unfortunately also become tools for the government to monitor, control and punish the populace for behavior and speech that may be controversial but are far from criminal.”

Anthony Elonis was an active poster on Facebook who often used references to popular culture to express his views, feelings and frustration about events in his life. In May 2010, after Elonis’ wife left him and took his two children, he began listening to rap music and alluding to the sometimes violent lyrics of rap songs on his Facebook page. Elonis would couple these postings with statements acknowledging that the lyrics were fictitious and that he was simply exercising his First Amendment right of expression. After his estranged wife obtained a protection order against him, Elonis posted a reference to a comedy sketch of The Whitest Kids U’ Know about threatening language that Elonis changed to include a reference about harming his wife. In another post, Elonis used the lyrics of Eminem in which the rap artist included fantasized thoughts about shooting up a school. After federal agents were alerted to some of his postings, an investigator was sent to speak with Elonis. In response, Elonis posted rap lyrics he wrote containing fantasized language about having a bomb strapped to his body and doing violence to the agent.

In response to these postings, the federal government charged Elonis under a statute making it a crime to transmit in interstate commerce any communication containing a threat to injure another. Elonis was convicted on four counts of violating this statute but appealed his conviction, arguing that the government should have been required to prove that he intended to threaten the alleged victims, not simply that the victims could reasonably have believed the words were “true threats.” In weighing in on the case before the U.S. Supreme Court, Rutherford Institute attorneys argue that “in order to protect the First Amendment rights of speakers, courts must ensure that they are criminalizing more than just the unrealized and unrealizable fears of particularly sensitive listeners.”

In a related case, The Rutherford Institute is also representing Marine veteran Brandon Raub, who was arrested, detained in a psychiatric ward, and forced to undergo psychological evaluations based solely on the controversial nature of lines from song lyrics, political messages and virtual card games which he posted to his private Facebook page.

LEGAL ACTION

Click here to read The Rutherford Institute’s amicus brief in Elonis v. United States