Balancing Free Speech: The Battle Against Extremism

May 28, 2015 Updated: April 23, 2016

The Islamic State group has not only proven itself adept on the battlefield, but its social media strategy, prowess, and presence is also an accomplishment worth noting.  While the group does not pose a military threat, necessarily, to the continental United States, the biggest fear of law enforcement officials is IS sympathizers or lone wolves acting in their name.  United States law enforcement has arrested several Americans who have either planned to travel to Syria to wage jihad with IS or have expressed the desire to commit attacks on American soil.  For those who offer threatening comments on social media against the U.S., how can law enforcement balance free speech rights while determining if threats are credible?

This is a problem law enforcement personnel face daily.  “We don’t punish speech. What we punish is criminal conduct,” Assistant Attorney General for National Security John Carlin told the Wall Street Journal.  “We’re not looking to stop people from expressing viewpoints.”

As with all rights, there are caveats – no right is absolute.  So when does speech become criminal?  Under the “true threats” doctrine established by the Supreme Court, speech that “encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals,” is a criminal act and thus constitutes a “true threat.”

In fact, the Supreme Court heard oral arguments in a case this term with particular interest to potentially threatening speech conducted on social media.  In Elonis v. United States the Supreme Court will determine whether or not comments made in the form of “gangster rap” on social media can be taken as a criminally threatening act.  The petitioner had turned to Facebook to “vent” about his wife who had recently divorced him, writing to the effect of murdering his ex-wife, though in the form of a rap.  Could these comments be taken as a credible threat to commit murder?  The petitioner asserted that they were fictitious scenarios yet his ex-wife had reason to fear for her safety.

According to the view of the federal government, the petitioner’s statements should be judged on two grounds: “first, did he make his statements intentionally (without regard to what he was thinking), and, second, would ‘a reasonable person’ read the words used and their context as conveying to the target of the message that they would be injured or killed?”

The Supreme Court previously drew the line on free speech in a case involving cross burnings maintaining that the act of burning a cross served as a physically intimidating act crossing the free speech threshold to be taken as a credible threat of violence.

In the context of terrorism and counterterrorism, this balance can be difficult and law enforcement often rely on several factors prior to arresting a suspect.  Writing about closely held documents recently released by the FBI under a Freedom of Information Act request, Vice News investigative reporter Jason Leopold noted that files the U.S. government kept on Samir Khan – a Pakistani American who was one of the founders of Inspire, a widely influential jihadi propaganda publication, and killed in 2011 by a drone strike – “show an attempt to suppress his extremist rants, which would otherwise be protected under the First Amendment.”

“Samir Khan continues to post violent jihadi blogs on the Internet despite several attempts to silence him,” wrote Leopold quoting the files.  Leopold also quoted a former FBI official who shed additional light on the difficulty of law enforcement officers in matters of free speech and terrorist-type rhetoric on social media:

“The longtime concern by civil libertarians regarding the material support statute is that it does encroach in what otherwise would be First Amendment protected activities…It’s a dangerously broad statute…. Someone expressing their viewpoint, no matter how abhorrent, is normally protected unless intended to incite imminent violence. Under the material support statute, the critical element becomes whether his speech was coordinated with a designated foreign terrorist organization.”

With Khan, law enforcement officials sought to investigate whether his words inspired, no pun intended, or influenced anyone to act maliciously.

Often times, law enforcement personnel use social media as an initial indicator or as just a small piece of a larger picture in pursuing a suspect.  Generally, in cases in which individuals have been successfully arrested prior to committing any harm to others, law enforcement catch them acting after social media activity, typically attempting to travel overseas.

Even though actions speak louder than words, in today’s environment of heightened awareness for terrorist activity, law enforcement officials are on edge.   With perceived overreaches by the government to protect against threats such as aggressive measures by the NSA, balancing freedoms with safety is of the utmost importance.