Two days ago, the president of the National School Boards Association, Viola Garcia, sent a letter to Joe Biden demanding that federal law enforcement be unleashed upon parents who protest at school board meetings; see National School Board Official Demands Biden Use Patriot Act Against Protesting Parents. The idea behind it was as craven as you might imagine coming from an organization that sees itself as omnipotent when it comes to dealing with your children. Across the country, school board meetings have been filled with angry parents objecting to mask mandates, sexually explicit and deviant reading materials, and Critical Race Theory being introduced into the classroom. School boards, unable to provide coherent answers to the issues, turned to the government to shut down parent protests. I have to admit being so naive that I was caught by surprise with failed Supreme Court nominee and current Attorney General Merrick Garland declared that preventing “threats” was now one of DOJ’s top priorities (Biden’s Justice Department Announces It Considers School Board Protests to Be Threats and Promises Action).
As my colleague Nick Arama reported, Florida Governor Ron DeSantis made no bones about his opposition to the use of federal law enforcement to quash parental involvement in school board meetings (see DeSantis Throws Down the Gauntlet: Confronts Garland on Troubling FBI Announcement). However, Missouri Senator Josh Hawley cut to the core of the matter when questioning Stellvertretender Reichsinspektor, sorry, I mean Deputy Attorney General Lisa Monaco about the bizarre directive from Garland.
Hawley: I want to come back to this extraordinary letter and memorandum that the Attorney General of the United States issued yesterday. Practically every day brings new reports about this administration weaponizing the federal bureaucracy to go after political opponents. Frankly, I don’t think we’ve ever seen anything like it in American history. I mean for those of us who missed the McCarthy era, I guess this president is intent on bringing it to us but with new force and new power and new urgency unlike anything we’ve ever seen. Are you aware of any time in American history when an Attorney General has directed the FBI to begin to intervene in school board meetings…local school board meetings?
Monaco: I’m not aware and I’m not aware that—that…and that is not going on. Let me be very
Hawley: Really, this isn’t about local school board meetings? That’s not the subject of the memorandum? I thought that was in the memorandum.
Monaco: The memorandum is quite clear it’s one page and it asks the U.S. Attorney community and the FBI special agents in charge to convene state and local law enforcement partners to ensure that there’s an open line of communication to address threats, to address violence, and that’s the appropriate role of the Department of Justice to make sure that we are addressing criminal conduct and violence.
Hawley: At local school board meetings? Let me just ask you this, is parents waiting sometimes for hours to speak at a local school board meeting to express concerns about critical race theory or the masking of their students, particularly young children is that in and of itself is that harassment and intimidation? Is waiting to express one’s view at a school board meeting harassment and intimidation?
Monaco: As the Attorney General’s memorandum made quite clear spirited debate is welcome is a hallmark of this country um it’s something we all should engage in and
Hawley: I don’t think so, Ms. Monaco. With all due respect, it didn’t make it quite clear. It doesn’t define those terms, nor does it define harassment or intimidation. It talks about violence, I think we can agree that violence shouldn’t be condoned or looked aside from in any way swept under the rug at all. But harassment and intimidation? What do those terms mean in the context of a local school board meeting? I mean this seems to… in the First Amendment context we talk about the chill. The chill to speech. If this isn’t a deliberate attempt to chill parents from showing up at school board meetings of their elected school boards, I don’t know what is. I mean I’m not… I’m not aware of anything like this in American history. We’re talking about the FBI. You’re using the FBI to intervene in school board meetings. That’s extraordinary.
Monaco: Senator, I have to respectfully disagree. That is not what…
Hawley: Point me to an instance.
Monaco: The Attorney General’s memorandum made quite clear that violence is not appropriate. Spirited public debate on a whole range of issues is absolutely what this country is all about, um…
Hawley: Then why is it being investigated by the FBI ?
Monaco: It is not. When and if um…any…um…uh situation turns to violence, then that is the appropriate role of law enforcement to address it, um…now…
Hawley: The memorandum covers more than violence. It talks about intimidation. It talks about harassment. So, I’m asking you to draw some lines. We do this all the time in the first amendment context. This is, this is the sum and substance of first amendment law, so I expect that you’ll be available and… and willing to do it now. Tell me where the line is with parents expressing their concerns? Waiting for hours in the school board meetings. We’ve all seen the videos. This happened in my state. Parents have waited for hours. Sometimes the school board meetings have been ended before they can speak because the school board doesn’t want to hear it. And now parents are told that if they wait and they express their views that they may be investigated for intimidation?
Monaco: I don’t know who’s telling them that, Senator? The job of the Justice Department is to investigate crimes when a situation turns to violence–when and if a situation turns to violence–it’s the job of the Justice Department and local law enforcement to address that. The Attorney General’s memorandum simply asked the U.S. Attorney community, the FBI, and their counterparts to ensure that state and local law enforcement has an open line of communication to report threats whether they happen in the context of election officials being threatened, where they haven’t happened in the context of members of congress being threatened which the FBI responds to on a regular basis, as is appropriate the job of the Justice Department is to address criminal conduct.
Hawley: you know All I can say is this is truly extraordinary. I think you know it is. It’s unprecedented and you can’t point to a single instance where anything like this has happened before. And I think parents across this country are going to be stunned to learn, stunned, that if they show up at a local school board meeting, by the way, where they have the right to appear and be heard, where they have the right to say something about their children’s education, where they have the right to vote, and you are attempting to intimidate them, you are attempting to silence them, you are attempting to interfere with their rights as parents and, yes, with their rights as voters. This is wrong. This is dangerous. And I cannot believe that that an Attorney General of the United States is engaging in this kind of conduct. And frankly I can’t believe that you are sitting here today defending it. I intend to get answers to these questions. You won’t answer my questions, I’m going to get answer these questions. Mr. Chairman, we need to have a hearing on this subject we need to hear from the Attorney General himself. He needs to come here take the oath sit there and answer questions. We have never seen anything like this before in our country’s history and frankly I want to say I think it is a dangerous, dangerous precedent.
This is the critical part.
It talks about violence, I think we can agree that violence shouldn’t be condoned or looked aside from in any way swept under the rug at all. But harassment and intimidation? What do those terms mean in the context of a local school board meeting? I mean this seems to… in the First Amendment context we talk about the chill. The chill to speech. If this isn’t a deliberate attempt to chill parents from showing up at school board meetings of their elected school boards, I don’t know what is. I mean I’m not… I’m not aware of anything like this in American history. We’re talking about the FBI. You’re using the FBI to intervene in school board meetings. That’s extraordinary.
If you have any doubt about what the left means when it talks about “harassment and intimidation,” that takes place when anyone does anything to slow down their agenda.
The Department of Justice must intervene to protect besieged school board members in this country. This is organized intimidation and threats to public officials. That is a crime in Florida, but don’t count on people like Desantis to protect them. pic.twitter.com/0XC5TP5zzL
This is Andy McCarthy, hardly the wild-eyed populist, who puts the lie to the whole exercise:
Garland well knows, as he and Clinton officials stressed to me nearly 30 years ago, that in the incitement context, the First Amendment protects speech unless it unambiguously calls for the use of force that the speaker clearly intends, under circumstances in which the likelihood of violence is real and imminent. Even actual “threats of violence” are not actionable unless they meet this high threshold.
A fortiori, the First Amendment fully protects speech evincing “efforts to intimidate individuals based on their views.” As long as such speech does not constitute a clear and imminent threat to do violence if the individual acts on his or her views, there is no incitement — and hence no law-enforcement interest to vindicate.
The irony here is that Garland knows precisely what he’s doing. He knows that the protests at school board meetings are not illegal (that’s why there have been so few arrests), but he’s trying to take the pressure off the school boards that is being exerted by justly outraged parents. Thus, he is holding out potential criminal action or at least using the process to punish protesters by forcing them to hire attorneys to prevent Americans from using their First Amendment rights.